Tsoumbanellis v R

1. [1]

   GARLING J: I agree with the orders proposed by Dhanji J and with the reasons which his Honour gives.

2. [2]

   IERACE J: I also agree with the orders proposed by Dhanji J and with his Honour’s reasons.

3. [3]

   DHANJI J: The applicant, Dimitrios Tsoumbanellis, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed upon him in the District Court of New South Wales at Sydney on 10 December 2024 by his Honour Judge Neilson.

4. [4]

   Following his pleas of guilty in the Local Court, the applicant was sentenced with respect to the following offences:

5. [5]

   An aggregate sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years, commencing on 18 October 2023 was imposed. The non-parole period will end on 17 October 2026 and the full term will expire on 17 April 2028.

6. [6]

   With respect to sequence 3, two further offences were taken into account on a Form 1 attached in accordance with Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA):

7. [7]

   The maximum penalty applicable to sequence 3, the commercial supply offence, was a fine of $385,000 and/or imprisonment for 20 years. A standard non-parole period of 10 years is prescribed. The maximum penalty applicable to sequence 5, the proceeds offence, was 15 years imprisonment.

8. [8]

   The matters on the Form 1, had the applicant been convicted of those offences, would have carried maximum penalties of a fine of $5,500 and/or imprisonment for 12 months, and a fine of $220,000 and/or imprisonment for 15 years, respectively. The applicant was not, however, to be sentenced for those matters. They were to be taken into account, potentially leading to greater weight being given to specific deterrence and retribution and, potentially, in providing context when sentencing for the primary offence: 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]; Kapila v R [2024] NSWCCA 48.

9. [9]

   Indicative sentences for each of sequence 3 and sequence 5 were specified in accordance with s 53A(2)(b) of the CSPA. The indicative sentences nominated were, respectively, 4 years imprisonment with a non-parole period of 2 years and 6 months, and 2 years imprisonment with a non-parole period of 1 year and 6 months.

10. [10]

    As originally notified, the applicant sought to rely on the following four grounds of appeal:

11. [11]

    Ground 1 was ultimately expanded, as discussed below. For the reasons set out below, I would grant leave to appeal and allow the appeal.

The Facts

1. [12]

   A statement of agreed facts signed by the applicant on 14 July 2024 was tendered during the sentencing proceedings. The sentencing judge summarised those facts as follows (at [6]-[8]):

2. [13]

   The total amount of methylamphetamine was 386.54 grams. The applicant admitted to police during the execution of the search warrant that he was “selling drugs”. On arrest, he participated in an electronically recorded interview, during which he made further admissions. The trial judge summarised those admissions as follows (at [10]-[13]):

Proceedings on Sentence

1. [14]

   The proceedings on sentence took place on 15 November, 5 December and 10 December 2024. Both parties provided written submissions and made oral submissions to the court.

2. [15]

   The Crown tendered a bundle of documents comprising a notice of committal, court attendance notices, a Form 1, a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), a statement of agreed facts, the applicant’s criminal history and custodial history reports, and a sentencing assessment report dated 31 October 2024.

3. [16]

   The applicant tendered the report of Dr Paul Pusey, clinical and forensic psychologist, dated 5 November 2024 and various records from the applicant’s Justice Health file.

Sentencing

1. [17]

   Having set out the facts surrounding the offences, the sentencing judge canvassed the applicant’s criminal history, which commenced in 1977. That history was remarkable in its late onset, with the exception of some gambling offences in the applicant’s younger years. The sentencing judge found the applicant’s criminal history to be consistent with that of “a regular supplier of drugs, a practice in which he appears to have been engaged over a number of years throughout his seventh decade, and speaks of an addiction that he probably acquired shortly after he turned 60”. The sentencing judge outlined the applicant’s convictions for drug offences, those offences having been committed in January-July 2003, February 2016, January 2018, August 2020, October 2020, October 2021 and May 2022. The sentencing judge observed (at [29]):

2. [18]

   The sentencing judge also outlined the applicant’s recent custodial history. At the time of the applicant’s arrest on 18 October 2023, he was on parole in relation to an aggregate sentence of 18 months imprisonment with a non-parole period of 10 months, commencing on 21 May 2022. That sentence was in relation to the May 2022 drug offences, which comprised four counts of supply prohibited drug and two counts of deal with proceeds of crime. The sentence was imposed by the Downing Centre District Court, following the applicant’s appeal from the sentence imposed on him in the Local Court.

3. [19]

   The applicant’s recent cycle of re-offending can be summarised in the following way. Having received his first custodial sentence, a sentence of 20 months imprisonment with a non-parole period of 10 months, for offences relating to the supply of drugs committed in August and October 2020, the applicant reoffended within two months of his release. Following a further sentence of 18 months imprisonment with a non-parole period of 10 months, the applicant reoffended, again, within two months of release. He again received a sentence of 18 months imprisonment with a non-parole period of 10 months, and was released in March 2023. He committed the present offences some six months after that release. The present was thus the fourth sentence of imprisonment for similar offending, all after the applicant had turned 60.

4. [20]

   The sentencing judge noted that the commission of the offences while the applicant was on parole was an aggravating factor.

5. [21]

   The sentencing judge considered the application of the statutory aggravating factor that “the offence was committed in the presence of a child under 18 years of age” pursuant to s 21A(2)(ea) of the CSPA. This is the subject of ground 2, discussed below.

6. [22]

   The sentencing judge went on to consider the report of Dr Pusey. Dr Pusey canvassed the applicant’s personal circumstances and substance use history, and diagnosed the applicant with substance use disorder, the substance being methylamphetamine. Having regard to the applicant’s history, the sentencing judge considered that the applicant’s retirement following his triple bypass surgery put him at a “loose end and led to his taking up using methylamphetamine and that also led to his falling into the wrong company”. The sentencing judge also noted Dr Pusey’s opinion as to the applicant’s levels of remorse and insight, extracted as follows:

7. [23]

   The sentencing judge considered the sentencing assessment report tendered by the Crown, which assessed the applicant at a medium risk of re-offending according to the Level of Service Inventory-Revised assessment tool. He also considered the applicant’s health with regard to the applicant’s Justice Health records. He made the following findings (at [44]-[46]):

8. [24]

   The sentencing judge found that the objective seriousness of the proceeds offence was “at the lower end of the range”. In so doing, he considered that the applicant “was amassing money with which to buy more drugs from the supplier to him so that he could continue supplying to those lower in the chain”. The sentencing judge did not make a finding as to the objective seriousness of the commercial supply offence. No complaint was made with respect to this omission.

9. [25]

   The sentencing judge made a finding of special circumstances for the purposes of varying the ratio of the non-parole period to the total sentence, those circumstances being “the [applicant]’s age and the need to have him on parole for a substantial period of time so that he may be assisted by Community Corrections to abstain from illicit drugs”. Consequently, the statutory ratio of 75 percent was reduced to 66 percent.

Ground 1 – His Honour failed to apply a utilitarian discount

1. [26]

   While framed as it is above, the applicant’s complaint as elaborated in submissions is a failure to discount the applicant’s sentence for the utilitarian value of his plea of guilty in accordance with Div 1A of Pt 3 of the CSPA, which includes s 25D.

2. [27]

   Section 25D(1) and (2), which are the presently relevant provisions, provide:

3. [28]

   The applicant was committed to sentence from the Local Court, which indicates that pleas of guilty had been accepted by the magistrate. None of the exceptions referred to in s 25D(2) applied, with the result that s 25D(2)(a) was operative. No discretion was reposed in the sentencing judge with respect to the discount: s 25D(1). This was subject only to s 25F(2) which provides an exception to the discount regime where the offender’s level of culpability is so extreme that the discount should not be applied or should be reduced, and s 25F(4) which applies where there has been a disputed facts hearing. There was no determination (or suggestion) that the applicant’s level of culpability was such that s 25F(2) applied and there was no disputed facts hearing. A discount of 25 percent was mandated by the legislation: see Sampson v R [2025] NSWCCA 25. This was both the mandatory and the exclusive discount to be allowed for the utilitarian value of the applicant’s plea of guilty: s 25A(2), CSPA.

4. [29]

   While the provisions explicitly provide that a failure to comply with the division does not invalidate the sentence (s 25F(8)), that does not mean that such a failure will not amount to an error amenable to appeal pursuant to s 5 of the Criminal Appeal Act: s 101A CSPA; DS v R [2025] NSWCCA 53 per Mitchelmore JA at [63]; Forti v R [2016] NSWCCA 127 at [48]-[49]; R v Tuncbilek [2004] NSWCCA 139 at [33].

5. [30]

   Despite the applicant’s entitlement to a mandatory discount, no reference was made to the application of any such discount by the sentencing judge in his reasons for imposing the sentence. The applicant’s submission is that no discount was applied. His argument is, necessarily, that the sentencing judge’s failure to make any reference to the application of a discount should lead to an inference that no such discount was applied.

6. [31]

   There is some support for the applicant’s contention. R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 was decided prior to the enactment of Div 1A of Pt 3, but is nonetheless relevant. In the context of providing a guideline judgment with respect to the utilitarian discount to be applied with respect to pleas of guilty, Spigelman CJ said (at [52]-[53]):

7. [32]

   As set out above, the “general rule” is the absence of any reference to the plea in the course of sentencing, will result in an inference that a plea has not been given weight. However, there will be cases where other factors have the result that it can be inferred that the plea was taken into account: see Borri v R [2023] NSWCCA 166 at [36]-[45]. The respondent submits that that is the case here.

8. [33]

   As canvassed in Hamill J’s typically helpful discussion of the issue in Borri at [36]-[45], there have been, since Thomson and Houlton, a number of appeals in this Court based on the failure of the sentencing judge to expressly refer to the application of a discount for the utilitarian value of a plea of guilty, with different results being reached in different cases.

9. [34]

   In support of the submission that the appropriate discount was given, the respondent tendered two documents on the appeal. The first of these was a document obtained from the District Court file. The document has the appearance of an official court document, bearing at the top of the page the New South Wales coat of arms, under which is the heading “DISTRICT COURT New South Wales”:

10. [35]

    The respondent relies on the words “NOTE: 25% discount for early guilty plea on each of the indicatives” in the final line of the document. The respondent, in written submissions, relied on this document as the record of “the formal orders of the Court”. It is not clear what was meant by this. It was not the formal order of the court by which judgment was perfected: see R v Lapa (No 2) (1995) 80 A Crim R 398; NH v Director of Public Prosecutions for the State of South Australia (2016) 260 CLR 546; [2016] HCA 33 at [30].

11. [36]

    The old rule in relation to the orders of the court being perfected when entered on the indictment discussed in R v Lapa (No 2) and NH v Director of Public Prosecutions for the State of South Australia has been modified by the District Court Rules 1973 (NSW). Pt 53, r 12 of those rules provides:

12. [37]

    It can be accepted that the document formed part of the court file for the purposes of r 12(6). The document was not, however, signed by the judge. Rather, on the face of it, it was signed by the associate. Counsel for the Crown, at the hearing, acknowledged that the document did not fall within r 12 but submitted that it was a document that could be taken into account as relevant to the question of whether a discount of 25 percent had been given for the utilitarian value of the plea of guilty. I am not of the view that the document has any particular status in these proceedings. I do not accept that it can be taken into account to support any inference. Whilst it was not objected to, in my view it is irrelevant.

13. [38]

    The respondent also relied on the orders recorded on JusticeLink. JusticeLink is the official computerised records system used by the court and is thus, for the purposes of Pt 53, r 12(c), the “appropriate computer record” on which orders may be entered. The JusticeLink record contains an entry for each of sequences 3 and 5. After setting out the offence, the following appears, in identical terms, with respect to each offence:

14. [39]

    There are also entries for sequence 4 and sequence 6 which indicate those offences were taken into account on a Form 1 (although the offence in relation to which they were taken into account is not stipulated).

15. [40]

    It can be accepted that the computer entry includes “the record of the judgment, order, sentence, direction or recommendation”. It is, therefore, the court record of the aggregate sentence imposed on the applicant and has significance in that regard: see Cullen v R [2014] NSWCCA 162 at [36]. The words noting the application of a discount to the indicative sentences are not, however, a “judgment, order, sentence, direction or recommendation” within r 12. In this regard, I do not accept the respondent’s submission that they are an “order”. They do not direct anyone to do anything. No one is bound by them. They may explain how the sentence was arrived at, but the place for reasons is in the reasons for sentence delivered in court. I am not of the view that the JusticeLink record assists the respondent.

16. [41]

    While the above documents do not assist the respondent’s submission, there are a number of circumstances suggesting the plea was taken into account.

17. [42]

    First, the matter was listed before his Honour following the applicant’s committal for sentence. Further, there was no dispute before the sentencing judge that the applicant was entitled to a discount of 25 percent for the utilitarian value of those pleas pursuant to s 25D(2)(a) of the CSPA. This was explicitly acknowledged by counsel for the applicant and the Crown in their written submissions.

18. [43]

    Further, at the commencement of his reasons his Honour said:

19. [44]

    Significantly, in arriving at the indicative sentences with respect to the commercial supply offence, his Honour had regard to the statistics provided by the Judicial Commission of NSW. Having referred to the range of sentences generally, his Honour then referred to statistics which were refined to more closely meet the present case by factoring in the presence of a Form 1, prior convictions of a similar type with custody, the identity of the particular drug, and, critically for present purposes, a plea of guilty. It might be noted that his Honour said that on adding those factors, “the statistics give me a head sentence of 48 months with a non-parole period of 30 months”, which was precisely the indicative sentence his Honour ultimately arrived at.

20. [45]

    It can be accepted that the present case has similarities to Tran v R [2020] NSWCCA 39, a case relied on by the respondent, where the inference was drawn that the appropriate discount was applied. Certainly, having regard to the matters I have referred to above, it appears his Honour was cognisant of and took into account the plea of guilty, in at least some way. More difficult is the question of whether his Honour took it into account by providing a 25 percent discount for the utilitarian value of the plea.

21. [46]

    His Honour’s opening reference to the plea of guilty made no reference to the timing of that plea. The case is different from Tran in that regard. In Tran, the opening observation of the sentencing judge referred not only to the plea, but to the fact of its entry in the Local Court. The timing is of course critical to the extent of the discount applied. Similarly, while his Honour had regard to the statistics in relation to cases where there had been a plea of guilty, those statistics did not differentiate the data based on the timing of the plea. The only circumstance among the various matters relied on by the Crown which is relevant, not just to the plea, but to the extent to which the sentence was to be discounted, is the joint submissions of the parties. An unadopted submission, even if jointly made, is a shaky foundation from which to draw a positive inference that the matter was properly taken into account.

22. [47]

    Pointing the other way, at least with respect to the extent of any discount, are the indicative sentences themselves. While some rounding may have occurred, sentences of 4 years and 2 years, after the application of a 25 percent discount, do not lend themselves to obvious starting points. This makes the question of whether a discount was applied and, if so, the extent of its application, even more opaque: cf Edwards v R [2017] NSWCCA 160 at [40]; Woodward v R [2014] NSWCCA 205; (2014) 68 MVR 376 at [11]. It leaves this Court to guess at the starting points.

23. [48]

    In Lee, Matthew v R [2016] NSWCCA 146, Basten JA and McCallum J, after analysis of the proper approach to the issue, concluded (at [37]):

24. [49]

    The above is consistent with what was said by the High Court in Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [14], where the High Court concluded that the “absence of reasons sufficient to exclude” the possibility of legal error having occurred constituted legal error. See also Hayne J’s observation in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130]).

25. [50]

    Ultimately, in the present case, the resolution is straightforward. Somewhat belatedly, in submissions in reply, the matter having been raised by the Court, the applicant sought to expand the ground of appeal to incorporate a failure to comply with s 25F(7) of the CSPA, which forms part of Div 1A, Pt 3 of the CSPA, the division of the act with which the ground is concerned. The respondent did not oppose the applicant being granted leave to do so. While leave was granted, it is to be expected that, prior to drafting grounds of appeal, and certainly well before oral argument, counsel will have read the relevant legislation. Section 25F provides:

26. [51]

    Plainly, if a discount was in fact allowed, s 25F(7)(a) was not complied with. Conversely, although it was not suggested this was the case, if no discount was allowed, s 25F(7)(b) was also not complied with.

27. [52]

    While s 25F(8) provides that the “failure by a court to comply with this division does not invalidate any sentence imposed by the court”, that sub-section speaks to the validity of the pronounced sentence and does not prevent the applicant relying on the error on appeal: s 101A, CSPA and the cases referred to above.

28. [53]

    Having regard to the above, I am inclined to the view that the mandatory discount of 25 percent required by s 25D(2)(a) was not applied to the indicative sentences. In any event, s 25F(7) was not complied with. Ground 1 has been established.

Ground 2 – His Honour erred in including “the presence of children” as an aggravating factor in relation to the indicative sentences and the form one

1. [54]

   As the facts tendered establish, the applicant was in possession of drugs in the premises where he lived with his partner and her two young children. He pleaded guilty to being in possession of those drugs for the purpose of supply and admitted his guilt with respect to the premises being used as a drug house. The sentencing judge said (at [26]-[28]):

2. [55]

   The applicant submitted that, while his Honour did not regard the aggravating factor in s 21A(2)(ea) to be made out with respect to sequence 3, he nonetheless erred in regarding the offence as serious on the basis that it “exposed [the children] to a danger”.

3. [56]

   The gravamen of offences involving prohibited drugs is the danger they pose to the community. There is a greater concern where the danger is posed to vulnerable members of the community such as children. In the circumstances, and having regard to the locations where the drugs were found, there is no error in his Honour’s finding that children were exposed to danger. It was not necessary that the risk was realised before his Honour could take this matter into account. The case is quite unlike McLaughlin v R [2013] NSWCCA 152 where, while there were children in the home, it was not established that they witnessed the assaults with which the offender was charged. Here, the offences were ongoing with drugs located in common areas in the home in which the children lived.

4. [57]

   With respect to the matter on the Form 1 , his Honour found that it was quite probably a relevant aggravating factor to that offence, and “if not an aggravating factor as such”, I interpolate, within s 21A(2)(ea), that it certainly increased the “culpability for that offence”. For the same reasons as given above with respect to the commercial supply offence, there was no error in this finding.

5. [58]

   I would reject ground 2.

Ground 3 – His Honour failed to take into account the remorse and age of the applicant as a mitigating factor on sentence

1. [59]

   Despite the formulation of the ground, there was no suggestion that these asserted errors were related. I will deal with each separately.

2. [60]

   In written and oral submissions, the applicant’s counsel submitted that the applicant was remorseful. This was put in support of a submission as to the applicant’s prospects of rehabilitation, albeit it was acknowledged, realistically, that those prospects remained guarded.

3. [61]

   The sentencing judge did not make an explicit finding as to either the presence of remorse, or, if present, how it was taken into account.

4. [62]

   The respondent submitted that it was apparent from his Honour’s reasons that the applicant’s remorse had been taken into account. Implicit in this submission was an acceptance that the applicant was entitled to a finding that he was remorseful, that finding not being precluded by s 21A(3)(i) of the CSPA. The respondent relied on the following passages in his Honour’s reasons:

   1. (1)

      The reference to the applicant’s admissions at [12]:

   2. (2)

      The recitation of the following part of Dr Pusey’s report at [41]:

   3. (3)

      The discussion of the applicant’s potential path to rehabilitation at [43] and at [46]:

5. [63]

   The respondent’s submission is without foundation. It is not possible to read from the above passages any finding that the applicant was remorseful. Further, no reference was made by the sentencing judge to the most salient part of Dr Pusey’s report, which had been referred to in the written submissions of the applicant’s counsel. Dr Pusey reported the applicant as having told him:

6. [64]

   Additionally, even if, contrary to the above, it could be implied that the recitation of the admissions and parts of Dr Pusey’s report relied on by the Crown amounted to a finding of remorse, it is not possible to ascertain how such a finding was taken into account. I am of the view that this part of the ground is made out.

7. [65]

   The applicant additionally asserts that his Honour erred by not taking into account his advanced age.

8. [66]

   There is no doubt that his Honour was concerned by the applicant’s age, and the consequent prospect that he may have significant issues with his health. Indeed, when the matter first came before him on 15 November 2024, his Honour raised concerns as to the absence of evidence with respect to the applicant’s health, leading to the matter being adjourned in order to obtain that material. In the event, further evidence was obtained. His Honour summarised the effect of that evidence which he found included, based on his interpretation of the abbreviations in the records, the presence of ischaemic heart disease, hypertension, coronary artery bypass grafting and gastro-oesophageal reflux disease. No issue is taken with his Honour’s conclusion with respect to the medical evidence (at [46]):

9. [67]

   The applicant’s complaint, as a result, relates to age alone. As observed above, this was a matter of which his Honour was acutely aware, leading to the adjournment of the proceedings. Further, at the beginning of his recitation of the agreed facts, his Honour said (at [6]):

10. [68]

    His Honour relied on the applicant’s age in finding special circumstances for the purposes of adjusting the relationship between the non-parole period and the total sentence. It is thus clear that his Honour was aware of the applicant’s age, and expressly took it into account, at least with respect to the non-parole period.

11. [69]

    The vast majority of cases concerning the sentencing of aged offenders involve a combination of age and ill-health. Nonetheless, advanced age of itself remains relevant. The absence of reference to age (other than in the context of an offender’s prospects of rehabilitation or their awareness of the consequences of their actions) in s 21A(3) of the CSPA, does not impact this: s 21A(1) CSPA. In Liu v R [2023] NSWCCA 30; (2023) 306 A Crim R 105 at [39], Campbell J (Adamson JA and McNaughton J agreeing) adopted the following summary from Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 at [54]:

12. [70]

    In the present matter, factors (3) and (4) above are relevant. Factor (3) is consistent with what was said in R v Mammone [2006] NSWCCA 138 at [45]. There, James J, with whom the other members of this Court agreed, was “prepared to accept that the advanced age of the respondent entitled him to some discount in sentencing, on the basis that serving a term of imprisonment will be more than usually onerous for him”, albeit that was a case where health concerns were also present. It has also been observed that, for an elderly person, “[e]ach year spent in prison represents a substantial portion of the remaining years of life which [he or she] may expect”: R v DB [2001] NSWCCA 320, citing R v Hunter (1984) 36 SASR 101, a consideration that is not entirely co-extensive with factor (3) referred to above.

13. [71]

    Returning to the present case, having stressed the applicant’s age, his Honour did not expressly indicate how it was taken into account other than in finding special circumstances. However, given the importance given to the fact by his Honour, I would not infer that its significance was overlooked insofar as it was also relevant to the head sentence. This part of ground 3 is, in my view, not made out.

Resentence

1. [72]

   Ground 1 and at least part of ground 3 having been established, it is necessary to exercise the sentencing discretion afresh.

2. [73]

   I must have regard to the various purposes of sentencing as set out in s 3A of the CSPA, noting that those purposes may, at times, pull in different directions. Punishment, deterrence, denunciation, the need to make the applicant accountable for his actions and their consequences, the protection of the community and the recognition of the harm done to the community, all have a role to play. The applicant’s rehabilitation remains a relevant consideration, although the weight to be given to this factor is impacted by the not entirely optimistic assessment of his prospects.

3. [74]

   The sentencing judge made no findings as to the objective gravity of the commercial supply offence, albeit some findings were made that are relevant to that assessment. It is consequently necessary that I consider the objective gravity of the offending.

4. [75]

   The commercial supply offence was serious. It involved a total of 386.54 grams of methylamphetamine. That figure is somewhere between the commercial quantity of 250 grams and the large commercial quantity of 500 grams applicable to that drug.

5. [76]

   As has been said many times, the role of the offender in the chain of supply will usually be more significant in assessing objective gravity than the weight of the drugs. In the present case, the applicant was himself actively engaged in the supply of drugs to purchasers for profit. His offending is more serious than that of a person engaged as for example, a courier, or in storing drugs for others.

6. [77]

   On the other hand, the applicant’s offending was not particularly sophisticated. Drug supply offences involving commercial and large commercial quantities very commonly involve persons, who are not themselves drug users, engaged with others in sophisticated organisations involving very significant profits. Here, however, the applicant acted alone rather than as a member (let alone senior member) of a well organised syndicate. The applicant was himself a user of drugs. While the offences were obviously used to fund his addiction, the offending went somewhat beyond that, and consistent with the commercial quantity involved, resulted in a profit of approximately $10,000 every four months. He is not, of course, to be sentenced for those past supplies. They do, however, inform the nature of the present offending. Financial gain is generally regarded as an inherent characteristic of the commercial supply of prohibited drugs and, as a result, does not operate to aggravate the offence unless the financial gain was significant: Huang v R [2017] NSWCCA 312. The financial gain in the present case was not such as to aggravate the offence.

7. [78]

   Having regard to the above matters, I regard sequence 3 as falling somewhat below the mid-range of objective seriousness.

8. [79]

   As set out above, his Honour found the objective gravity of the proceeds offence to be “at the lower end of the range”. Accordingly, I adopt that finding.

9. [80]

   The applicant was on parole for offences of supplying prohibited drugs and dealing with proceeds of crime at the time he committed the offences the subject of this appeal. This is a significant aggravating factor. It speaks to the need for specific deterrence and denunciation. The applicant’s record is such that he is not entitled to leniency.

10. [81]

    There was no challenge to his Honour’s finding that the applicant’s health was not such as to impact his incarceration. I would, however, accept that the applicant’s age is a matter likely to bear on him. In the context of the late onset of his drug addiction, which occurred in the context of the breakdown of his marriage of 40 years, there is a real pathos in the situation in which the applicant finds himself. The applicant’s choices, and their consequences, in the context of the limited number of years available to him, must weigh heavily on him. That said, the punishment must reflect the seriousness of the offending behaviour. Further, there must be some attenuation of the impact of the applicant’s age, given the applicant’s recent cycle of serving periods of imprisonment and quickly returning to offending.

11. [82]

    I would also accept that the applicant is remorseful. This finding is based on his report to Dr Pusey, supported by my observations above as to the likely impact of imprisonment on him. The applicant’s expression of remorse to Dr Pusey, however, appears to have been primarily focused on himself and those close to him, rather than the impact of his actions on the community more generally, where the scourge of drugs is well known. The weight I would give this matter is consequently limited.

12. [83]

    The applicant’s age and his remorse positively impact on his prospects of rehabilitation. Having regard to his recent history, however, any assessment of those prospects must remain guarded.

13. [84]

    With respect to sequence 3, it is necessary to have regard to the offences on the Form 1. The offence of supply MDMA provides context in establishing the applicant was dealing in multiple drugs and is, in this way, informative of the enterprise being conducted by the applicant. Having regard to the primary offence, it has minimal impact on any additional weight that might be given to personal deterrence. I would give some, albeit slight, additional weight to retribution.

14. [85]

    The offence of allowing premises to be used as drug premises does nothing to inform the penalty to be imposed on the applicant. Where an offender’s own premises are used for the purposes of drug supply, and the offender is charged with respect to that supply, the facts and circumstances of that offence necessarily incorporate the use of the premises. It is difficult, in those circumstances, to ascertain what an additional charge of keeping drug premises could add to the sentencing exercise other than unnecessary complexity. It is difficult to understand why such charges are proceeded with in circumstances such as the present.

15. [86]

    I have regard to the maximum penalties applicable to each of the two offences, of 20 years and 15 years, respectively, which operate as yardsticks in determining the indicative sentences. In relation to the commercial supply offence, I have regard to the standard non-parole period which has the function provided in s 54A(2) of the CSPA. While it does not directly apply in this case, it, again, is relevant as a yardstick.

16. [87]

    There is no alternative to full-time imprisonment. I intend to proceed by way of an aggregate sentence pursuant to s 53A of the CSPA. With respect to each offence, the indicative sentence will be reduced by 25 percent for the utilitarian value of the applicant’s pleas.

17. [88]

    With respect to sequence 3, the commercial supply offence, I start with a sentence of imprisonment of 5 years, which reduced by 25 percent, results in a sentence of 3 years and 9 months. I would set a non-parole period of 2 years and 3 months.

18. [89]

    With respect to sequence 5, the proceeds offence, I would start with a sentence of 3 years, which reduced by 25 percent results in a sentence of 2 years and 3 months. I would set a non-parole period of 18 months. I note that, while it is not necessary to set a non-parole period in relation to this sentence, doing so provides some assistance when it comes to considerations of totality.

19. [90]

    It is necessary to determine the relationship between the individual sentences. The commercial supply offence relates to the drugs in the applicant’s possession for the purposes of supply. The money the subject of the proceeds offence was from drugs which had, in the past, been supplied. The proceeds offence was thus not the result of the commercial supply offence: cf Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58. Nonetheless, there was significant overlap, as, while the commercial supply offence related only to the drugs in the applicant’s possession, the proceeds offence illuminated the ongoing nature of the criminal activity, which provided context to the commercial supply offence. I would, as a result, allow substantial concurrency. With respect to the aggregate sentence, like the sentencing judge, I find there are special circumstances for the purposes of s 44(2B) of the CSPA warranting a reduction of the ratio between the head sentence and the non-parole period. Those circumstances are the applicant’s need for rehabilitation, his age and his underlying health conditions. While none of those conditions are presently acute, there must be a significant prospect that this will change in the near future.

20. [91]

    I would impose a sentence of imprisonment of 4 years with a non-parole period of 2 years and 6 months to commence on the date the applicant entered custody.

21. [92]

    I propose the following orders:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal allowed.

    3. (3)

       The sentence imposed in the District Court on 10 December 2024 is quashed.

    4. (4)

       The applicant is sentenced to an aggregate term of imprisonment of 4 years, comprising a non-parole period of 2 years and 6 months with a balance of term of 18 months, commencing on 18 October 2023. The non-parole period will expire on 17 April 2026. The total term is due to expire on 17 October 2027.