Hudson v R

1. [1]

   ADAMSON JA: I agree with Chen J. On re-sentence, I would also have imposed a higher sentence than the sentence imposed by the sentencing judge. In these circumstances, and for the reasons given in the authorities cited in RO v R [2019] NSWCCA 183 at [84]-[89] (Beech-Jones J (Bathurst CJ and N Adams J agreeing)) it would not be appropriate to reveal the sentence which I would have imposed.

2. [2]

   CHEN J: Following a plea of guilty entered in the Downing Centre Local Court on 10 August 2023, Jake Hudson (‘the applicant’) was committed to the District Court to be sentenced for one count that, on 17 November 2022, he knowingly took part in the supply of a large commercial quantity of prohibited drugs, namely, methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). At the time of sentence, the applicant also sought to have three further offences dealt with on a Form 1, in accordance with s 33(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’).

3. [3]

   The quantity of methylamphetamine referable to this offending was 1,132.2 grams. The maximum penalty for the offence is life imprisonment with a standard non-parole period of 15 years.

4. [4]

   On 6 December 2023, the applicant was sentenced by her Honour Judge O’Rourke SC (‘the sentencing judge’) to 7 years imprisonment with a non-parole period of 4 years and 6 months, commencing 18 March 2023. The applicant’s non-parole period expires on 17 September 2027.

5. [5]

   By Notice of Appeal dated 31 July 2025, the applicant seeks leave to appeal against his sentence, raising two grounds:

   1. (1)

      that “[t]he sentencing Judge erred by taking into account an offence on a Form 1 in assessing the objective seriousness of the principal offence”; and

   2. (2)

      that “[t]he sentencing Judge erred in failing to make any finding accepting or rejecting the case advanced by the applicant concerning his experience of abuse in juvenile detention and the relevance of his mental disorders in mitigation of the sentence”.

Extension of time

1. [6]

   While the applicant filed a Notice of Intention to appeal his sentence on 12 December 2023 (being six days after his sentence was determined), the subsequent Notice of Appeal was filed on 31 July 2025 – over 18 months later. In these circumstances, the applicant sought an extension of time from the Court for leave to bring his appeal.

2. [7]

   In support of his application, the applicant relied on the affidavit of Christopher Cole affirmed 29 October 2025 explaining the delay. Further, he argues that “[t]he delay is relatively limited”; that he has a “strongly arguable” case; that there is “no prospect of a retrial or rehearing” and “no question arises as to the fading memory or potential re-traumatization of witnesses”: all factors which (he submits) support the extension of time required (applicant’s submissions at [9]).

3. [8]

   The Crown opposes the application for an extension of time for “the same reasons” as to why the substantive grounds of appeal should be dismissed (Crown submissions at [7]). Given I consider that the applicant has made good ground 2, the interests of justice support the extension sought – which should be granted. Nevertheless, as I explain in what follows, although I would grant leave to appeal, in my view the appeal should be dismissed.

Background

1. [9]

   The applicant was sentenced pursuant to a Statement of Agreed Facts (‘agreed facts’) and what follows is drawn from those agreed facts and the sentencing judgment. Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc.

2. [10]

   On the evening of 17 November 2022, police were patrolling in South Coogee when they pulled over a black Jeep, having formed the view that the driver was being evasive. Their initial intention was to conduct a roadside breath test. The vehicle was being driven by the applicant’s girlfriend and the applicant was in the front passenger seat (J2).

3. [11]

   After pulling over the vehicle and establishing that it belonged to the applicant’s mother, police conducted further checks and ascertained that the applicant, who had identified himself to them, was subject to both a firearms prohibition order and a weapons prohibition order (J2-3). The police then asked the applicant and his girlfriend to exit the car and informed them that they were going to conduct a personal search of each of them and a search of the car pursuant to the firearms prohibition order (J3).

4. [12]

   While conducting the personal search of the applicant, police “located a mobile phone and a wallet containing $1,800 in cash” (J3). When questioned about why he had this amount of cash, the applicant replied that “he had won $2,500” while playing pokies (J3). The cash was later seized (J3). The possession of that money resulted in the applicant being charged with dealing with property suspected of being the proceeds of crime (less than $100,000), contrary to s 193C(2) of the Crimes Act 1900 (NSW) (sequence 3).

5. [13]

   While conducting the search of the car, “police located a black freezer bag containing a number of smaller black bags” as well as “an approximately 20-centimetre-long black taser with a charging cable” (J3). When questioned by police, the applicant said that “he did not know what the taser was for” and also asserted that “it was not his and he did not know it was there” (J3). Police then placed the applicant under arrest for breaching the firearms prohibition order. The applicant was charged with two offences: first, use a prohibited weapon in contravention of a prohibition order, contrary to s 34(1) of the Weapons Prohibition Act 1998 (NSW) (sequence 2); and, secondly, possess or use a prohibited weapon, namely a taser, when not authorised by a permit, contrary to s 7(1) of the Weapons Prohibition Act (sequence 6).

6. [14]

   Upon further inspection of the smaller bags within the black freezer bag, police located the following: a plastic bag rolled up with rubber bands containing 107.1 grams of methylamphetamine of unknown purity; a resealable plastic bag containing 254.7 grams of methylamphetamine at 79% purity; and a knotted plastic package containing 40.7 grams of methylamphetamine of unknown purity (J3). They also found a black leather bag containing the following: a resealable plastic bag containing 491.5 grams of methylamphetamine at 74% purity and a resealable plastic bag containing 239.2 grams of methylamphetamine at 76% purity (J3). The total amount of methylamphetamine was 1,132.2 grams (J3).

7. [15]

   The applicant initially denied any knowledge of the contents of the black freezer bag containing the methylamphetamine and the taser (J3). Later, however, following his arrest, the applicant participated in an electronic recorded interview with police. During that interview, the applicant was questioned about the taser and the methylamphetamine located in the vehicle, and he “stated that they were located in a black bag that a man had paid him $2,000 to take somewhere” (J4). The applicant agreed with police that he “put the bag in the back of the vehicle” but “did not recall the man’s name” (J4).

8. [16]

   A number of the items seized from the vehicle were subjected to DNA and fingerprint analysis. The DNA recovered from a swab of the seal of the resealable plastic bag containing 254.7 grams of methylamphetamine matched the applicant’s DNA profile.

9. [17]

   The facts described above resulted in the applicant being charged with several drug offences, including the drug supply offence under s 25(2) of the Drug Misuse and Trafficking Act earlier referred to.

10. [18]

    The sentencing judge noted that, in relation to the drug supply offence, the offence carried a maximum penalty of life imprisonment, with a standard non-parole period of 15 years (J1). Her Honour also noted that the applicant sought to have three further offences dealt with on a Form 1 – namely, the proceeds of crime offence and the weapons offences (J1).

11. [19]

    In relation to the Form 1 offences, the maximum penalties were: for the proceeds of crime offence, three years imprisonment (sequence 3); and for the weapons offences, 10 years imprisonment (sequence 2) and 14 years imprisonment (sequence 6) respectively.

12. [20]

    Before the sentencing judge, there was a contest about the objective gravity of the applicant’s offending. The Crown submitted that this should be assessed “at mid-range”, whereas the applicant submitted that it “fell below mid-range” (J5). Her Honour made findings about the objective seriousness of the applicant’s offending as well as findings about the matters set out in the background facts (J4-5).

13. [21]

    Additionally, given various and competing arguments were advanced by the parties about the applicant’s role in the offending, the sentencing judge addressed that specific issue, noting that where he was stopped by police “was near his home”; he was driving with his girlfriend; and “the amount and type of what [drug] was located and the evidence before [her Honour]” meant “it [was] difficult to determine his role conclusively” (J5). The sentencing judge nevertheless went on to make the following further findings and assessment of the objective seriousness of the offending (J5):

14. [22]

    I note that the applicant, by ground 1 of his Notice of Appeal, argues that the sentencing judge fell into error by referring to the applicant having a taser in his custody, it being suggested that her Honour contravened first principles by taking into account the offences involving use or possession of the taser (sequences 2 and 6) when determining the objective seriousness of the principal offence.

15. [23]

    Returning to the summary of the sentencing judgment, having addressed these matters, the sentencing judge turned to the applicant’s subjective case which, as the applicant did not give evidence, was based upon documents tendered on his behalf.

16. [24]

    Her Honour noted that the applicant had a long history of abusing drugs and that, “[o]ther than the buprenorphine program, which he began in 2022, he ha[d] not received treatment or rehabilitation for his drug use” (J7). Further, in this respect, her Honour also noted that Dr Lennings, the consultant psychologist retained to provide an opinion for the applicant’s sentencing hearing, “opined that [the applicant] appears … to have chronic difficulty … in abstaining from methylamphetamine. He was assessed as having a medium risk of re-offending, according to the level of service inventory revised” (J10).

17. [25]

    The sentencing judge noted that the applicant, who at the time of sentence was 34 years of age, was reported to have spent, since turning 18, “about ten years in prison. His longest sentence was six years seven months, and his longest time in the community was about 13 months” (J10). Her Honour noted, at the time of committing the principal offence, that the applicant had been “released on parole on 16 February 2022 for serious firearm and drug offences committed in June 2019” and that, in consequence of the offending, the applicant’s parole was revoked (J1-2, J10). The sentence imposed for that offending was an aggregate sentence of 4 years, commencing 12 July 2019 and concluding on 11 July 2023, with a non-parole period of 2 years, 7 months and 5 days, commencing 12 July 2019 and concluding on 16 February 2022 (J11).

18. [26]

    Her Honour noted that, in relation to drug supply, the decision in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 (‘Parente’) “indicates that the aspect of general deterrence looms large in any finding or any assessment in relation to the sentencing process” and, further, in relation to the applicant, there was “also a need for specific deterrence, noting the prior criminal history of the [applicant] and the repeated nature of his offending” (J10-11).

19. [27]

    The sentencing judge found there to be two aggravating features present. The first was that the applicant “was on conditional liberty. He was nine months into his parole period, and for very serious offending” (J11). The second was that the applicant also had “prior convictions, which [were] extensive” and included (J11):

20. [28]

    Her Honour also found that the applicant’s criminal history indicated that the present offending was “not an uncharacteristic aberration” and that it demonstrated a “continuing attitude of disobedience of the law, and demonstrate[d], to [her Honour’s] mind, the need for general and specific deterrence” (J11).

21. [29]

    The sentencing judge noted the applicant’s plea, accepting that “he [would] receive a 25% discount as statutorily defined”, adding that “it was a strong Crown case, and, effectively, he was caught red-handed” (J11).

22. [30]

    In relation to remorse, the sentencing judge noted that the applicant had provided a letter to the Court, albeit that the letter had “limited weight” in light of the fact that the applicant “[had] not given evidence” before her Honour (J11). Nevertheless, her Honour found that, coupled with his “expressed … remorse to other third parties, and, of course, his plea”, there was “evidence of genuine remorse” (J11-12). In relation to rehabilitation, “considering all aspects”, the sentencing judge found “it to be still guarded … it [was] intrinsically involved [in] whether or not he [could] remain abstinent from illicit drugs. If [the applicant] [could], then his prospects for rehabilitation [would] improve” (J12).

23. [31]

    The sentencing judge accepted that the applicant’s childhood “clearly had elements of hardship and difficulty” and that, recently, the applicant “ha[d] reported that he was sexually assaulted when in juvenile detention, and there [was] some evidence of [an] actual claim issued … through the reports prepared” (J12-13). Her Honour further accepted that the applicant’s “social disadvantage, the drug issues he was surrounded by, the absence of his natural father and the times of neglect endured in his younger years” combined to reduce “his moral culpability to some limited extent” (J13).

24. [32]

    The sentencing judge also made “a finding of special circumstances of just under 66% … due to [the applicant’s] dire need for supervision upon his release, and also for the protection of the community, together with the risk of institutionalism” (J13).

25. [33]

    The sentencing judge, taking into account the applicant’s plea and the Form 1 offences, imposed a sentence of 7 years imprisonment, commencing 18 March 2023 and expiring on 17 March 2030, with a non-parole period of 4 years and 6 months, commencing 18 March 2023 and expiring on 17 March 2030 (J14).

26. [34]

    I now turn to address the applicant’s grounds of appeal.

Ground 1: the use of the Form 1 offence when assessing the objective seriousness for the principal offence

1. [35]

   By this ground of appeal, the applicant argued that the sentencing judge erred “in taking into account the applicant’s possession of the taser in assessing the objective seriousness of the principal offence, being an offence of drug supply” (applicant’s submissions at [31]). The applicant’s essential submission was that the finding about the objective gravity of his offending was flawed because it impermissibly was informed by the Form 1 offences relating to the weapons offences (sequences 2 and 6): that is, it involved him being punished – twice – for the conduct encompassed by that offending (applicant’s submissions at [32]).

2. [36]

   The Crown submitted that no such error had been committed by the sentencing judge and that this was readily apparent upon a fair reading of the sentencing judgment (Crown submissions at [45]). More particularly, the Crown submitted that the sentencing judge did no more than consider the circumstances of the offending, including the possession of the taser, when considering the applicant’s role, but that consideration did not invalidate the sentencing judge’s finding about the objective gravity of the offending (Crown submissions at [50]-[54]).

3. [37]

   Before dealing with the arguments advanced, it is useful to give some brief explanation of how the issue about the taser arose before the sentencing judge and to outline aspects of, and principles relating to, the Form 1 procedure.

4. [38]

   In the written submissions before the sentencing judge, the parties accepted that the applicant’s role in the supply offence was relevant to an assessment of the objective seriousness of the offending, albeit that they adopted different positions about what findings could be made.

5. [39]

   The applicant, in the written submissions filed for the sentencing hearing, submitted that “[t]he facts … do not exclude him being a courier and might in fact be thought to actually support his assertions”. Further, the applicant also submitted that the fact he was not found in possession of other matters which might indicate actual supply – such as “drug ledgers/lists, scales, or packaging for distribution (little drug bags or similar)” – was also supportive of him being “a courier of the drugs”, rather than a principal, which “would reduce somewhat the objective seriousness”. The Crown, in the written submissions filed for the sentencing hearing, submitted to the contrary – arguing that the applicant was not “merely a courier” and, to that end, contested the account that the applicant gave, that was broadly to that effect, when interviewed for the purposes of the Sentencing Assessment Report dated 28 November 2023.

6. [40]

   During submissions before the sentencing judge, the applicant’s counsel addressed the applicant’s “role” in the offending: consistent with the written submissions, the applicant contested the Crown’s argument that he was “more than a courier”, emphasising that there was no “indicia of supply”, albeit accepting that “[t]he taser was obviously in the bag”.

7. [41]

   The stances adopted before the sentencing judge on this issue about the relevance and subject matter of the surrounding circumstances in drug supply offending were no doubt informed by decisions such as R v Falzon (2018) 264 CLR 361; [2018] HCA 29 at [1], where it was said:

8. [42]

   The applicant’s ground of appeal does not call for any fine-grained analysis of the Form 1 procedure. It is sufficient, in order to deal with the respective arguments, to note the following three relevant features of that procedure.

9. [43]

   First, where, as here, an offender that is to be sentenced for a principal offence asks for offences to be taken into account under ss 32 and 33 of the CSP Act, the sentencing court takes into account those matters for which guilt has been admitted “with a view to increasing the penalty that would otherwise be appropriate for the particular offence” – which it does by giving greater weight to the need for personal deterrence and retribution: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42] (‘Attorney-General’s Application’); Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22]-[23], [35] (‘Abbas’).

10. [44]

    Secondly, it is not permissible for offences on a Form 1, of themselves, to “inflate” the objective seriousness of the principal offence: Stephens v R [2010] NSWCCA 93 at [69]; RO v R [2019] NSWCCA 183 at [55]-[58] (‘RO’); Tukuafu v R [2024] NSWCCA 84 at [127]-[131].

11. [45]

    Thirdly, although a Form 1 offence does not increase the assessment of the objective seriousness of the principal offending, “the facts and circumstances of the Form 1 offence … may be relevant to the assessment … For example, such circumstances might place the substantive offence in context”: Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; (2023) 307 A Crim R 149 at [24], citing LN v R [2020] NSWCCA 131 at [54]; see also Ragg v R [2022] NSWCCA 150 at [38]-[40].

12. [46]

    It is important to note the boundaries of the applicant’s argument in support of this ground. The applicant expressly accepted that his possession of the taser was a fact or circumstance that was relevant to an assessment of his role in the drug supply offence: “… the applicant’s possession of the taser was part of the context for his offence of knowingly taking part in drug supply” (applicant’s submissions at [33]). During submissions in this Court, the applicant again accepted that it was permissible to take into account the applicant’s possession of the taser so as to contextualise his role in the supply of drugs (T7.33-8.5).

13. [47]

    Notwithstanding that stance, the applicant argued that the sentencing judge’s use of that fact or circumstance – not the offending for either or both weapons offences (sequences 2 and 6) – “suggests” the infliction of “double punishment” because there was an inflated finding of objective seriousness (applicant’s submissions at [36]). He argued that the sentencing judge “did more than take the weapon into account as context” by, in substance, impermissibly punishing him twice (T4.12-13, T8.1-8.45).

14. [48]

    The applicant’s submission was couched in terms of a suggestion (or inference) of error – it being accepted that the sentencing judgment contained no express statement that the sentencing judge took into account the offending in the way argued. The applicant submitted that an inference of error should be drawn because the sentencing judge addressed this issue in the context of her consideration of the objective seriousness of the offending and, further, because her Honour made no express statement, in effect, disavowing that the applicant was being punished twice.

15. [49]

    I do not accept the applicant's arguments, for the following reasons.

16. [50]

    First, once it is accepted, as it was here, that the fact or circumstance (being the applicant’s possession of the taser) could be used to contextualise the principal offending, consistent with the authorities earlier referred to, then any complaint about its use substantively falls away. These authorities recognise the legitimacy of viewing an offence in context and considering other facts and circumstances of a particular offender when assessing the objective gravity of the offending: see the discussion and the authorities referred to in [45], above. Axiomatically, when used in that way, there is no contravention of any sentencing principle. In particular, as the applicant accepted, it does not amount to using a Form 1 offence to inflate the objective seriousness of the substantive offence.

17. [51]

    Secondly, that the sentencing judge discussed the applicant’s role in, broadly, the part of the sentencing judgment that addressed the objective seriousness of the offending does not, in my view, bespeak any error, less still error of the kind argued. Nor, in my view, and contrary to what the applicant submitted, can (or should) error be inferred merely because the sentencing judge did not expressly state that “the taser was only relevant as context” or, further, “that care should be taken to avoid double counting” (applicant’s submissions at [37](ii)). The purpose and function of providing reasons for a sentencing decision is ordinarily not advanced by such a requirement, nor was it required in this case given the manner in which the fact was used.

18. [52]

    Thirdly, that the sentencing judge did not commit the error argued is, I consider, evident from a wider consideration of the sentencing judgment – her Honour separately made findings about the objective seriousness of the principal offence and the Form 1 offences (J5) and, later, took those Form 1 offences into account in an entirely orthodox way when fixing the sentence imposed upon the applicant (J14). That the sentencing judge engaged in this approach tends to negate, in my view, the suggestion that error should be inferred, as was argued.

19. [53]

    For completeness, there is a final matter that should be noted. Although the applicant’s argument was that the sentencing judge impermissibly used the Form 1 offences in finding that the applicant’s offending was “towards the mid-range of objective gravity”, whether, and if so to what extent, that actual finding differed from the one that the applicant sought from the sentencing judge is not altogether clear and was not the subject of any submission. As noted above, the Crown sought a finding that the applicant’s offending fell at “mid-range”, the applicant sought a finding that it “fell below mid-range”, and the finding of the sentencing judge was that it fell “towards the mid-range”. Given the conclusion I have reached, it is unnecessary to address the matter further.

20. [54]

    I would not uphold this ground of appeal.

Ground 2: the failure to make a finding about the applicant’s claim that he was sexually abused in juvenile detention and the “relevance of his mental health disorders”

1. [55]

   By this ground of appeal, the applicant argued that the sentencing judge erred in two overlapping and interrelated ways: first, in failing to make any finding about his alleged experience of abuse in juvenile detention and, secondly, the “relevance of his mental disorders in mitigation of the sentence” (applicant’s submissions at [40]). The applicant’s essential argument, in relation to the first error, was that the sentencing judge simply omitted to make any finding “as to whether the sexual abuse occurred on the balance of probabilities” (applicant’s submissions at [58]) and, in relation to the second error, as confirmed during submissions in this Court, the argument was that the sentencing judge failed to address, and make findings about, the existence of his mental health conditions and the fact that a custodial sentence would weigh more heavily upon him (applicant’s submissions at [55]-[56]; T11.35).

2. [56]

   The Crown essentially submitted that, given the way these matters were raised during the sentencing hearing, her Honour sufficiently – and without error – dealt with them and, further, emphasised that the sentencing judge was not obliged to accept the assertions made by the applicant as contained in medical reports tendered on his behalf, nor to accept that the custodial environment for him would be more onerous because of his reported sexual abuse (Crown submissions at [66]-[67], [70]).

3. [57]

   It is necessary to briefly address some matters of background relating to the alleged abuse before dealing with the applicant’s arguments.

4. [58]

   The applicant, as has been noted, did not give evidence before the sentencing judge and, although his letter dated 27 November 2023 refers to him having a “claim going for what happened to [him] when [he] was a child …” and that until he made that claim he had “never spoken about it to anyone”, nothing else was said by the applicant about the alleged abuse.

5. [59]

   Before the sentencing judge, however, the applicant relied upon a report dated 20 April 2023 from a consultant psychiatrist, Dr Susan Brann, who was qualified by a solicitor on his behalf to assist with pursuing a civil claim arising out of that alleged abuse (‘Brann report’). The history contained within that report refers to the applicant alleging “he was subject to sexual abuse by an unknown officer while detained at Cobham Juvenile Justice Centre … commencing either 3 November 2005, or 25 February 2006”: Brann report at [1], [54]ff. The applicant also relied upon a report dated 17 December 2021 from a different psychiatrist, Dr Michael Robertson, who was also qualified by a solicitor on his behalf to assist with pursuing that claim (‘Robertson report’). Dr Robertson obtained a similar history: Robertson report at p 5.

6. [60]

   In relation to the alleged abuse, Dr Brann expressed the opinion that the applicant’s substance use disorder “was significantly exacerbated by the subject abuse” and that he consequently developed chronic post-traumatic stress disorder with associative symptoms, albeit that “there were significant pre-existing and prejudicial factors” that pre-dated the abuse: Brann report at [214]. Dr Robertson similarly diagnosed the applicant as having “developed chronic PTSD” in consequence of the alleged abuse, albeit that the applicant had an established “problematic trajectory towards a personality disorder and substance use”: Robertson report at p 10.

7. [61]

   The applicant, in the written submissions filed for the sentencing hearing, submitted that it was relevant that his alleged abuse occurred in a custodial setting and referred to the fact that he reported to Dr Robertson that he was “hypervigilant in his interactions with fellow prisoners or Corrections staff, often becoming intensely distressed when touched by the prisoners or subject to pat downs or cell searches which trigger flurries of his PTSD symptoms” and that he had had “several episodes of severe panic” (applicant’s sentencing submissions at [33]; Robertson report at p 6). The applicant’s written submissions filed for the sentencing hearing also referred to a similar report of difficulties in the custodial setting, as contained in Dr Brann’s report – namely, the applicant “is angrier now with strip searches, because of the reminders to the sexual abuse”, including “flashbacks” (applicant’s sentencing submissions at [34]; Brann report at [72]).

8. [62]

   I turn now to address the applicant’s arguments.

9. [63]

   In my view, contrary to what the applicant argued, the sentencing judge did not err in relation to the way in which she dealt with the applicant’s allegation that he was sexually abused whilst in juvenile detention. That is for the following reasons.

10. [64]

    First, the asserted error was that the sentencing judge failed to make a finding about whether, in fact, the abuse occurred. In my view, the sentencing judge was not obliged to make that finding, nor is it entirely clear how she could do so, given the way the material was presented – which included the fact that the applicant did not give evidence and the material relied on was based upon self-reports contained in medical reports.

11. [65]

    Secondly, in my view, the way the sentencing judge approached this issue was entirely appropriate. Her Honour referred to the fact that the applicant reported that he had been abused (J6) and that the claim had “issued” out of the applicant’s report “that he was sexually assaulted when in juvenile detention” (J13). Additionally, having addressed the matter in that way, it is, I consider, readily apparent from a fair reading of the sentencing judgment, particularly given these findings were made within that part of the sentencing judgment where the applicant’s childhood and upbringing were addressed, that her Honour factored these matters into the instinctive sentencing synthesis.

12. [66]

    The applicant’s second argument was that, irrespective of whether the sentencing judge made any particular finding about whether the sexual abuse occurred, his specific case to the sentencing judge – relating to the onerous nature of his time in custody by reason of his mental health issues stemming from that alleged abuse – was not dealt with by the sentencing judge, either expressly or inferentially: the applicant’s essential submission was that it was simply not apparent that the sentencing judge took into account that factor (applicant’s submissions at [58]). The applicant’s case before the sentencing judge on that issue was summarised in [61], above.

13. [67]

    It may be accepted, as the Crown argued, that the sentencing judge “had regard to the submissions and material advanced” by the applicant, including his social disadvantage and drug issues, and undertook a careful review of the multiple medical reports tendered. It may also be accepted, again as the Crown essentially argued, that much – if not most – of the case that the applicant advanced relating to his mental health was put to the sentencing judge in general terms – that is, without any specific submissions directed to the particular factual finding sought and without any clear submissions about why they engaged a particular sentencing principle so as to mitigate the severity of the sentence to be imposed. In my respectful view, the sentencing judge should have been favoured with appreciably more assistance than was provided to her. Nevertheless, in my view, the applicant did at least advance a clear case that sought factual findings and, building upon that, to invoke a particular principle to mitigate his sentence – namely, citing R v Hemsley [2004] NSWCCA 228 at [35], that “a custodial sentence may weigh more heavily on a mentally ill person”. The argument was contained in the written submissions filed (see [61], above), albeit not referred to at all during oral submissions before the sentencing judge by the applicant’s then counsel.

14. [68]

    The Crown argued that it was open to the sentencing judge to be unpersuaded by the applicant’s account about his abuse including, relevantly here, his experiences in the custodial environment weighing more heavily upon him given the abuse and its psychological sequelae. That submission may be accepted. However, the difficulty here, in my respectful view, is that the sentencing judge did not address the matter. If the argument was to be rejected – and it was open to her Honour to do so – then it was necessary to address it, including to briefly explain why that conclusion had been reached.

15. [69]

    It follows, for the reasons I have given, that the applicant’s second argument should be accepted and this ground of appeal upheld.

Resentence

1. [70]

   Error having been demonstrated, it falls upon this Court to re-exercise the sentencing discretion and determine the sentence to impose. If, following the re-exercise of the sentencing discretion, the Court is satisfied that a lesser sentence than that imposed by the sentencing judge should be imposed, then the appeal should be allowed: s 6(3) of the Criminal Appeal Act 1912 (NSW); Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

2. [71]

   In exercising the sentencing discretion, the sentencing court is required to be mindful of the two legislative guideposts – being the maximum sentence for the principal offence and the standard non-parole period (which have been earlier noted: see [3], above) – and to identify all factors relevant to the sentencing task, consider their significance and then assess the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27]. Further, the sentencing discretion is exercised without regard to the sentence imposed by the sentencing judge: Turnbull v R [2019] NSWCCA 97 at [44]-[46]; RO at [81]-[89].

3. [72]

   The applicant invited this Court to revisit – and, thus, implicitly sought to challenge – the objective seriousness and moral culpability findings made. Given the challenge raised by ground 2, it is also necessary to address the applicant’s argument that his time in custody is more onerous given the alleged abuse, and should mitigate the severity of any sentence imposed. Subject to these matters, and an invitation by the applicant to adopt a more generous alteration of the statutory ratio, neither party sought different findings from those made by the sentencing judge. In the circumstances described, the exercise of the sentencing discretion proceeds upon the findings made by the sentencing judge, supplemented by this Court’s findings in relation to the two challenged matters, together with “any relevant evidence of the offender's post‑sentence conduct”: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].

4. [73]

   The applicant’s ultimate submission was that, upon resentence, this Court would pass a lesser sentence. The applicant relied upon the affidavit from his solicitor, Christopher Cole, affirmed 15 October 2025, which was read on the usual basis on appeal. That affidavit set out a brief summary of the material produced by Corrective Services, as well as attaching his case notes and case plan summary.

5. [74]

   The Crown submitted that, undertaking a separate and independent exercise of the sentencing discretion, this Court would not form the opinion that a less severe sentence is warranted in law.

6. [75]

   In relation to the objective seriousness of the drug supply offence, the applicant submitted that although the offending was serious, warranting a substantial sentence of full-time imprisonment, the objective circumstances did “not suggest that this [was] a particularly serious offence of commercial drug supply” (emphasis in original): the applicant emphasised there was no evidence “indicating that [he] was involved in November 2022 in an ongoing enterprise with respect to the supply of prohibited drugs” and that whilst the weight of the drug was significant, that should not be treated as a decisive factor (applicant’s submissions at [65]-[66]). The Crown, on the other hand, submitted that the Court would find that the offence is “objectively serious” for various reasons including the quantity and purity of the drug (Crown submissions at [76]).

7. [76]

   The background facts have been earlier set out.

8. [77]

   The large commercial quantity for methylamphetamine commences at 500 grams (Drug Misuse and Trafficking Act, Schedule 1), whereas the applicant had in his possession in the boot of his vehicle (which was registered in his mother’s name) a total of 1,132.2 grams of the drug. The quantity of the drug is relevant to an assessment of the objective seriousness of the offending, but not determinative: R v Ferguson [2022] NSWCCA 147 at [76], citing Pham v R [2013] NSWCCA 217 at [27].

9. [78]

   The drugs were contained in a number of separate bags: a black tote bag containing clear plastic bags of the drug and a black leather bag containing clear plastic bags of the drug. The applicant’s DNA was located on the swab from the seal of a resealable plastic bag that was located within the black tote bag. Further, as the agreed facts record, whilst the applicant initially denied any knowledge of the contents of the freezer bag black (and, thus, the drugs within it: agreed facts at [13]), when later interviewed by police and questioned about the “methylamphetamine located in the vehicle, the [applicant] stated that [it was] located in a black bag that a man had paid him … to take somewhere”, and that he agreed to do this and “put the bag in the back of the vehicle”: agreed facts at [17]. The purity of the drug was high – between 74% and 76%.

10. [79]

    In relation to the applicant’s “role” in the drug supply, and acknowledging the limitations in attempting to classify the role of an offender on limited material (see Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 at [135]), the applicant also accepts, consistent with his submissions directed to ground 1, that it is relevant to consider as part of the context of his role in the offending the fact that he was in possession of a taser when arrested by police. The applicant also conceded, given the quantity of drugs involved, that he was “trusted” by others to, at a minimum, handle them (T13.30). The applicant’s essential argument was that he was merely a “courier” and should be sentenced as such. I do not accept this submission given that I am unpersuaded that the applicant was simply a courier, as he argued. However, beyond that I am unable to make a more precise finding, beyond reasonable doubt, about his “role”.

11. [80]

    In my view, this was a moderately serious case of drug supply.

12. [81]

    In relation to moral culpability, the applicant accepted the finding made by the sentencing judge that his moral culpability was reduced “to some limited extent” (see [31], above), but nevertheless submitted that this Court “would give more weight to this factor in the exercise of discretion” and, furthermore, submitted that this Court should find “there is a causal relationship between [his] mental disorders and the commission of the offence” (applicant’s submissions at [68]-[69]).

13. [82]

    It is important to note that the first limb of the applicant’s moral culpability argument does not, at least clearly, involve a challenge to the finding – only a reassignment of the weight to be given to moral culpability. There is reason to doubt the legitimacy of the invitation, given questions of weight are quintessentially matters for the sentencing judge and not this Court and, relatedly, absent a challenge to a finding, the re-exercise of the sentencing discretion by this Court proceeds on the basis of the findings made by the sentencing judge, as I have noted above. In this last respect, the recent observations made by N Adams J in Roulstone v R [2025] NSWCCA 7 at [142] are apt:

14. [83]

    Independently of the above, I would not depart from the finding of the sentencing judge.

15. [84]

    In relation to the second limb of the applicant’s moral culpability argument, which involved inviting this Court to find a causal relationship between “[his] mental disorders and the commission of the offence”, the applicant made no reference to any evidence that was submitted to support a finding in those terms, nor was the submission developed beyond the above. Little regard can be had to the applicant’s sentencing submissions given, as I have earlier noted, these were put in general terms.

16. [85]

    Given Dr Robertson’s report predates the offending, it can be put to one side. In relation to Dr Brann’s opinion, the substance of it appears from [210] of her report where she was specifically asked to address specific issues in connection with the applicant’s “medical condition”. It is not apparent, from the nature of the issues that Dr Brann was asked to address, that she offered any opinion about the suggested causal relationship between any underlying mental health condition and “the commission of the offence” and no attempt was made in submissions to suggest to the contrary. For completeness, I note that, in the part of the report dealing with “current circumstances”, the applicant gave a history of being held in custody because “there was a weapon in the back of the car”: Brann report at [4]. There was no suggestion, in this part of the report, that the applicant disclosed to Dr Brann that he had been charged with a range of offences including the principal offence.

17. [86]

    Also in evidence before the sentencing judge was a report from Dr Christopher Lennings dated 24 November 2023 (‘Lennings report’). The report is lengthy. No reference was made to that report, or any part of it, in the applicant’s submissions in this Court – written or oral. In the applicant’s sentencing submissions, there were limited references to that report and, of the references that were present, they principally detailed the history given by the applicant to Dr Lennings across a range of matters: for example, the applicant’s remorse, his role in the offending and his “prospects” (applicant’s sentencing submissions at [2], [8], [41]ff). The submissions also invited the sentencing judge to review Dr Lennings’ report at [39]-[40] “as to the deficits in the [applicant’s] executive functioning” which were noted “as capable of shedding significant light on the offending behaviour” (applicant’s sentencing submissions at [18]). That is where the matter was left.

18. [87]

    I am prepared to accept and find that the applicant’s moral culpability should be slightly moderated, given the existence of what Dr Lennings described as “general disorganisation and impulsive elements associated with [the applicant’s] behaviour”, and, in that broad way, made some contribution to the offending: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (‘De La Rosa’). This finding would supplement the moral culpability finding made by the sentencing judge: see [31], above.

19. [88]

    It is necessary to return to the applicant’s argument that, given alleged abuse and the psychological sequelae, his time in custody should be found to be more onerous with a consequent mitigation in the severity of any sentence imposed upon him: De La Rosa at [177]. The applicant relied upon the histories contained in the reports from Dr Brann and Dr Robertson to make good this argument (applicant’s sentencing submissions at [31]-[35]; applicant’s submissions at [53]) – specifically, the history contained in Dr Brann’s report at [72] and the history contained in Dr Robertson’s report at [23]. It is convenient to deal with these reports in chronological order.

20. [89]

    As to the history in Dr Robertson’s report (following his interview of the applicant on 2 August 2021), it records that the applicant reported that he was “hypervigilant” in his interactions with fellow prisoners or Corrective Services officers “often becoming intensely distressed when touched by the prisoners or subject to pat downs or cell searches which trigger flurries of his PTSD symptoms. He has had several episodes of severe panic”. There are difficulties with acting upon this evidence given that the frequency with which the symptoms arise is unknown, as is the nature and extent of the symptoms that the applicant allegedly experiences when they do.

21. [90]

    As to the history in Dr Brann’s report (following her interview of the applicant on 27 February 2023), it records that the applicant reported to Dr Brann that he is “angrier now with strip searches, because of the reminders to the sexual abuse, and because they have changed in nature”. The difficulties with acting upon this evidence are several and include the fact that the frequency with which “strip searches” are performed is simply unknown, nor is it possible to make any clear finding about what being “angrier” actually involves.

22. [91]

    There is a further matter. The accounts relied on about the symptoms apparently experienced by the applicant did not impress as being consistent. It is possible that, given Dr Brann’s report is more recent, the applicant’s apparent symptomatology is more in line with what is recorded in that report, rather than what was recorded in Dr Robertson’s report prepared some years earlier. No submissions were made about how these versions should be reconciled, nor whether they were reconcilable. As the applicant did not give evidence adopting any or all of these histories, there was no means by which they could be reconciled. Nor could they, in the circumstances, be given much, if any, weight.

23. [92]

    In the end, I remain unpersuaded that any psychological sequelae referable to the alleged abuse results in the applicant’s time in custody weighing more heavily upon him so as to mitigate the sentence to be imposed.

24. [93]

    It is, finally, necessary to refer to the applicant’s submission “that it would be appropriate” to further reduce the ratio under s 44(2) of the CSP Act beyond the 66% determined by the sentencing judge, following the finding that there existed special circumstances (applicant’s submissions at [71]).

25. [94]

    In my view, absent any direct challenge to that finding, this invitation should be rejected. To the extent this submission may be taken to have implicitly involved one, I would simply note that no arguments were advanced in support, and I do not accept that the statutory ratio could or should be changed. In any event, it is unnecessary to say anything further about it given the conclusion that I favour following the exercise of the sentencing discretion – addressed further below.

26. [95]

    The applicant, who is now 36 years of age, emphasised a number of matters that he argued warranted this Court imposing a lesser sentence upon him including the finding that he had demonstrated remorse and the further reduced moral culpability finding made (see [81]-[87], above). These matters may be accepted, as can the fact that he is entitled to a 25% discount for his early guilty plea: s 25D(2)(a) of the CSP Act.

27. [96]

    I have considered the applicant’s subjective case, and the findings made by the sentencing judge, earlier summarised.

28. [97]

    Not all findings made by the sentencing judge favoured the applicant, however. The following findings warrant emphasis. The sentencing judge found that there were two aggravating features present to be taken into account in determining the appropriate sentence. The first was that the applicant was on parole (having been released on 16 February 2022) at the time of this offending for what the sentencing judge described as “very serious offending” involving “serious firearm and drug offences committed in June 2019” (J10-11) – the drug offences, it is to be noted, included a conviction for drug supply. The second was that the applicant had “prior convictions, which [were] extensive” which her Honour considered was an indication that the applicant’s present offending was “not an uncharacteristic aberration” but instead demonstrated a “continuing attitude of disobedience of the law” and the need for general and specific deterrence (J11).

29. [98]

    Further, it is to be recalled that the applicant had three offences placed on a Form 1 (the maximum penalties for these offences has been set out: see [19], above). In that situation, the sentencing court takes into account the matters for which guilt has been admitted “with a view to increasing the penalty that would otherwise be appropriate for the particular offence” which it does by giving greater weight to the need for personal deterrence and retribution: Attorney-General’s Application at [42]; Abbas at [22]-[23], [35]. That should occur here. I note that, in relation to the Form 1 offences, the applicant did not challenge the sentencing judge’s finding that each of them were “objectively serious” (J5).

30. [99]

    The sentencing judge made a guarded finding about the applicant’s prospects of rehabilitation, considering it to be intrinsically connected to whether or not the applicant could remain abstinent from illicit drugs (J12). As the evidence read on resentence demonstrates, notwithstanding the applicant is in custody, he has been unable to remain abstinent having, repeatedly, failed drug screenings. That evidence provides practical confirmation of the currency of the sentencing judge’s guarded rehabilitation finding. It is also relevant to note that the sentencing judge considered that, absent complete abstinence and removing himself from antisocial peers, the applicant’s “life will be a revolving door of terms of imprisonment” (J12).

31. [100]

    I have had regard to the purposes of sentencing as expressed in s 3A of the CSP Act. I am also mindful of the maximum penalty and standard non-parole period, each of which indicates the seriousness with which Parliament views this offending. It is also important to give substantial weight to the principles of specific and general deterrence, as well as the protection of the community, in any sentence imposed for the drug supply offence: Parente at [107]-[115]. Each of these matters are particularly important sentencing considerations in the present case, as are the aggravating factors as found by the sentencing judge.

32. [101]

    In the circumstances described, I consider, having exercised the sentencing discretion, that a greater sentence is warranted than the one imposed by the sentencing judge: accordingly, no lesser aggregate sentence is warranted in law. Given that conclusion, the question that arises is whether it is necessary to specify the sentence. Although there is no inflexible rule, it is generally considered inappropriate to do so unless “some particular circumstance warrants it”: RO at [89] (and the discussion at [84]-[88]); Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223 at [182]. In my view, there are no particular circumstances that warrant specifying the sentence that would have been imposed.

Orders

1. [102]

   For the above reasons, I propose the following orders:

   1. (1)

      Extend the time for the filing of the applicant’s Notice of Appeal to 1 August 2025.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [103]

   COLEMAN J: I agree with Chen J.