MN (a pseudonym) v R

1. [1]

   SIMPSON AJA: I agree with Adamson J.

2. [2]

   ADAMSON J: MN (the applicant) seeks leave to appeal against the sentence imposed on him by Bright SC DCJ on 23 October 2020 of a total term of 5 years and 6 months commencing on 15 June 2019 and expiring on 14 December 2024, with a non-parole period of 3 years and 8 months, commencing on 15 June 2019 and expiring on 14 February 2023.

3. [3]

   The sentence was imposed following the applicant’s plea of guilty to one charge of supplying not less than a large commercial quantity of a prohibited drug, 3,4-Methylenedioxyamphetamine (MDA).

4. [4]

   The applicant asked her Honour, when imposing the sentence for the offence of which he had been convicted, following his plea of guilty, to take into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Form 1), the following four offences with which the applicant had been charged:

   1. (1)

      supply commercial quantity of MDA (143.6g) on 8 June 2017;

   2. (2)

      supply commercial quantity of MDA (166.48g) on 21 June 2017;

   3. (3)

      supply indictable quantity of MDA (71.9g) on 12 July 2017; and

   4. (4)

      supply commercial quantity of MDA (144.84g) on 26 July 2017.

5. [5]

   The applicant seeks leave to appeal against his sentence on the following grounds:

The sentence proceedings

1. [6]

   The hearing of the sentence proceedings commenced on 6 March 2020 at which time evidence was tendered by both parties, except in relation to the assistance provided by the applicant. The proceedings were adjourned to 7 April 2020 because of the sensitive nature of information relating to the assistance provided by the applicant. It would appear that a further adjournment was granted until 4 September 2020. On that day, evidence was called relating to that assistance. The parties then made submissions and, as her Honour had other commitments that day, the matter was stood over for sentence on 23 October 2020.

2. [7]

   The Crown tendered a statement of agreed facts; formal documents from the committal; the Form 1; and the applicant’s criminal and custodial histories which indicated that he had no prior criminal history.

3. [8]

   The applicant tendered two reports of Professor Greenberg, together with other medical material; reports of rehabilitation conducted in custody; urine drug analysis test results (which established that he had not tested positive for drug use in custody); documentation showing the applicant’s regular attendance at Alcoholics Anonymous and Narcotics Anonymous meetings and courses undertaken on relapse prevention; as well as character references from friends and associates and the applicant’s son. The applicant also tendered an affidavit which he had sworn setting out his background, family life, business career, assets, rehabilitation and future plans. He was not cross-examined.

4. [9]

   When recording the history which the applicant had given to him, Professor Greenberg noted:

5. [10]

   In conclusion, Professor Greenberg said, of present relevance:

6. [11]

   In his affidavit, the applicant said, of present relevance:

7. [12]

   Written submissions were provided to the sentencing judge by the Crown and on behalf of the applicant.

8. [13]

   The applicant’s submissions were arranged under headings. Of present relevance the submissions said under the heading “Objective seriousness”:

9. [14]

   Under the heading, “Mental illness”, the applicant’s legal representative extracted passages from Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [53] to the effect that mental illness may have the effect of reducing the weight given to general deterrence. He also extracted a passage from [54] of Muldrock to the effect that a causal connection between mental illness and the offending conduct could lessen an offender’s moral culpability. He also cited R v Hemsley [2004] NSWCCA 228 (Hemsley) at [33]-[36], extracting the following passages:

10. [15]

    Later in the submissions, the author returned to the topic of objective seriousness. After referring to the particular role of the offender, which was said to be of “central significance in assessing objective seriousness”, and referring in that connection to authority, the author continued:

11. [16]

    On 4 September 2020, the parties addressed her Honour orally by reference to the written submissions which they had provided earlier. The applicant’s counsel referred relevantly to the evidence as to mental illness in the following context:

12. [17]

    The applicant’s counsel made no oral submission to the effect that the connection between the applicant’s mental disorders ought lead to a reduction in his moral culpability or objective seriousness.

The reasons for sentence

1. [18]

   The sentencing judge recounted the facts associated with the offence, based on the statement of agreed facts as follows:

2. [19]

   Her Honour listed the following matters which she had taken into account in assessing objective seriousness: the quantity of MDA supplied; the applicant’s role; that the offending occurred when the applicant had a drug addiction and in order to reduce his personal drug debt; and that the offending took place over a period of almost six months. Her Honour assessed the objective seriousness as being below the middle of the range.

3. [20]

   The sentencing judge noted that the Crown did not rely on any aggravating factors and proceeded to refer to the applicant’s subjective circumstances, including his age of 44 at the time of sentence. Her Honour summarised and extracted from the report of Dr Greenberg, including the passages extracted above, which set out the various mental illnesses with which the applicant had been diagnosed and posited the link between the diagnoses and the offending based on the applicant’s “self-report and limited documentation”. Her Honour also said:

4. [21]

   The sentencing judge allowed a discount of 25% for the plea of guilty and an additional 20% for the assistance provided. Her Honour also found special circumstances.

5. [22]

   Her Honour also said, of present relevance:

Grounds of appeal

1. [23]

   The applicant submitted in this Court that the sentencing judge had failed properly to take into account the applicant’s mental disorders. The applicant contended, and the Crown did not dispute, that the sentencing judge had accepted the opinion of Professor Greenberg that there was a causal connection between the applicant’s mental disorders and his offending. The applicant accepted that her Honour had taken into account the link when deciding whether the applicant was a suitable vehicle for general deterrence but contended that her Honour had not taken it into account in determining objective seriousness or moral culpability.

2. [24]

   Mr Odgers SC, who appeared with Mr Pararajasingham on behalf of the applicant, submitted that it was sufficient that the applicant’s counsel on sentence had referred her Honour to the decision of this Court in Hemsley and that it was “inevitable” that her Honour should have addressed the question whether the connection between the applicant’s mental illness and the offending conduct was such as to impact on the assessment of moral culpability and objective seriousness. I understood him to submit that her Honour ought to have separately addressed these matters, whether or not there was a submission to that effect.

3. [25]

   In addressing this ground it is important to read the reasons for judgment as a whole, in light of the submissions made to the sentencing judge.

4. [26]

   The applicant argued that he was an inappropriate vehicle for general deterrence on the basis of mental disorders, but nonetheless contended that he accepted full responsibility for his offending and had, therefore, established remorse as a mitigating factor. Her Honour accepted that he bore full responsibility and was remorseful and can be taken as having regard to this as a mitigating factor. Her Honour found that the applicant “well understood the consequences of his actions notwithstanding that his judgment was impaired because of the consumption of cocaine”. This finding is sufficient, in the context of the reasons as a whole, to address the matters raised on behalf of the applicant.

5. [27]

   Her Honour also considered whether the applicant’s moral culpability was reduced because of his childhood and upbringing. The sentencing judge found that the applicant’s childhood did not fall within the category of disadvantage and deprivation referred to by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, but expressly took these matters into account when imposing the sentence.

6. [28]

   The sentencing judge was not in error in failing to address in greater detail submissions which were either not put or were put only by implication from the references in the applicant’s submissions to authority. Her Honour’s reasons were sufficient to address the matters raised.

7. [29]

   I would refuse leave to appeal in relation to ground 1.

8. [30]

   This ground was pressed by the applicant only if the first ground was held not to have been made out on the basis that the sentencing judge failed to accept the opinion of Professor Greenberg.

9. [31]

   My view as to ground 1 is based on the premise that the sentencing judge did accept the opinion of Professor Greenberg that there was a causal link between the applicant’s mental disorders and the offending conduct. Accordingly, this ground does not arise and leave ought not be granted in respect of it.

10. [32]

    This Court has, in Wang v R [2021] NSWCCA 282 at [84]-[102] (R A Hulme J, Meagher JA and Davies J agreeing), deprecated the practice of an applicant’s legal representative retaining an expert to provide a supplementary report on appeal with a view to elaborating on an earlier report which was tendered at the sentence hearing. It is not necessary to add to these observations, which are apposite in the present case.

Proposed orders

1. [33]

   For the reasons given above, I propose the following order:

   1. (1)

      Refuse leave to appeal.

2. [34]

   BELLEW J: I agree with Adamson J.