Robertson v R

1. [1]

   HARRISON CJ at CL: I agree with Ierace J.

2. [2]

   WILSON J: I also agree with Ierace J.

3. [3]

   IERACE J: The applicant seeks leave to appeal against a sentence imposed on him by Judge McLennan in the District Court at Lismore on 24 May 2022, following a plea of guilty in respect of one count of supplying not less than a commercial quantity of a prohibited drug (532.01g of cocaine) contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985 (NSW) (the Act) (the offence). The maximum penalty for the offence is 20 years imprisonment and there is a standard non-parole period of 10 years imprisonment. A commercial quantity is 250g.

4. [4]

   Three offences were taken into account on a Form 1, pursuant to ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). The applicant received an overall term of 6 years imprisonment, with a non-parole period of 3 years and 6 months, backdated to commence on 22 April 2021, which was the date of his arrest in respect of these matters and his entry into custody. The sentence will expire on 21 April 2027 and the applicant will become eligible for release on 21 October 2024.

5. [5]

   By a notice filed on 14 June 2023, the applicant sought leave to appeal against his sentence on three grounds:

6. [6]

   Following the sentence of a co-offender, Putu Sugiarta Winchester-Stanton (the co-offender), on 16 November 2023 by Hunt DCJ, the applicant filed an application for leave to rely upon a fourth ground, as follows:

7. [7]

   For the reasons that follow, I am of the view that error is established by grounds 1 and 2 and that a lesser sentence is warranted. That being so, it is unnecessary to consider grounds 3 and 4.

The sentence hearing

1. [8]

   The Crown bundle included a statement of agreed facts, the applicant’s criminal and custodial histories and a sentencing assessment report.

2. [9]

   The agreed facts, briefly stated, are to the effect that in December 2020, New South Wales police commenced an investigation into a group that were suspected of supplying cocaine in the Byron Bay and Mullumbimby area. The applicant was one of the suspects. On nine occasions between 21 January 2021 and 22 April 2021, an undercover operative (UCO) was supplied by the applicant with quantities of cocaine ranging between 27.73g and 139.1g, and totalling 532.01g according to the indictment, [1] in exchange for cash payments that came to a total of $174,000. The nine supplies occurred in public places and were monitored by police. Consequent to the monitoring, police established that the applicant would obtain the cocaine from the upline supplier immediately beforehand and convey the purchase money back to the upline supplier immediately afterwards. On the first supply, the upline supplier was not observed. On seven of the eight subsequent occasions, the upline supplier was observed and identified as the co-offender.

3. [10]

   On the remaining supply, the applicant told the UCO that his:

4. [11]

   The applicant was observed to drive to a location where he received a quantity of cocaine from another co-offender, Clayton MacDonald, which he supplied to the UCO, and then returned to Mr MacDonald with the purchase money.

5. [12]

   Following his arrest, the applicant participated in a recorded interview in which he essentially denied the offences. Another arrest that resulted from the same investigation was of Alyse Cameron, who was the applicant’s co-habiting partner at the time of the investigation until March 2021.

6. [13]

   The background to the three Form 1 offences was that, on some occasions during the investigation, the applicant supplied others with small quantities of cocaine. He supplied 1g on 15 February 2021 and 2g on 2 March 2021, contrary to s 25(1) of the Act. The maximum penalty for each of these offences was 15 years imprisonment: s 32(1)(c) and (g) of the Act. The agreed facts include text exchanges between the applicant and Ms Cameron, which are the evidentiary basis for the two supplies on the Form 1. They suggest that the applicant was occasionally skimming or diluting some cocaine intended for supply for his own use.

7. [14]

   When the applicant was arrested on 22 April 2021, police located 9.96g of cocaine in his vehicle. He was charged with the possession of a prohibited drug contrary to s 10(1) of the Act, which was the third Form 1 offence, for which the maximum penalty was 2 years imprisonment.

8. [15]

   The applicant entered a plea of guilty in the Local Court, entitling him to a discount of 25 per cent from any sentence that would otherwise have been imposed, pursuant to s 25D(2)(a) of the Sentencing Procedure Act.

9. [16]

   Between the age of 18 and 23, the applicant had two convictions for driving with a mid-range Prescribed Concentration of Alcohol (PCA), two convictions for driving whilst his licence was suspended, and one for common assault. Between the ages of 24 and his arrest when aged 32, he had three convictions for possessing a prohibited drug, three convictions for driving with an illicit drug in his blood and one conviction for driving during his disqualification period.

10. [17]

    In November 2019, the applicant received a twelve months’ community correction order (CCO) for driving while disqualified (the second or more such offence) and 80 hours community service work. On 15 February 2021 (which was the same date as one of the supplies to the UCO), he received a second CCO for a period of 2 years commencing on that date and expiring on 14 February 2023 for one count of possessing a prohibited drug. A condition for the second CCO was “drug and alcohol counselling as directed”.

11. [18]

    The applicant had not previously received a sentence of imprisonment.

12. [19]

    The sentencing assessment report, which was prepared by a Community Corrections Officer four months before the sentence, profiled the applicant as a single man with no dependents and “limited friends”. The applicant has two brothers, who are 9 and 12 years older than him. He had reconnected with them, who were described by the author as appearing to be prosocial and a good source of support for him. His source of income at the time of his arrest was Centrelink benefits, although he had a successful landscaping company until January 2021.

13. [20]

    The applicant reported that he increased his drug usage as a form of self-medication for head injuries that he suffered during a home invasion in 2019. By the time of his arrest, he was using 7g to 14g of cocaine a day and explained the offence as being consequent to his addiction:

14. [21]

    The author of the sentencing assessment report noted that the applicant had completed the 80 hours of Community Service work that was a condition of the first CCO. In January 2021, he participated in the Magistrates Early Referral Into Treatment program (MERIT). Prior to his arrest, the second CCO had been suspended “due to his low risk of reoffending”.

15. [22]

    The author assessed the applicant as having a “medium risk of reoffending” according to the Level of Service Inventory – Revised (LSI-R) assessment tool.

16. [23]

    The defence tendered a report by clinical psychologist Tim Watson-Munro, an affidavit sworn by the applicant’s brother who is 9 years older, who I will refer to by the pseudonym Frank, a newspaper article, certain medical documentation and a summary of records of lockdowns until four months before his sentence hearing that the applicant had experienced during his remand.

17. [24]

    Annexed to Frank’s affidavit is an affidavit by a District Officer with the Department of Community Services, Lynn Jervis, dated 10 December 1999 (when the applicant was aged 11) who was the Departmental officer with responsibility for his case at that time. The material provided to Mr Watson-Munro included Frank’s affidavit, and thus also Ms Jervis’s affidavit. The history taken by Mr Watson-Munro of the applicant is consistent with that contained in the two affidavits, to the extent that they overlap. The history of the applicant in the three documents was accepted by the sentencing judge. As there is considerable overlap between them, in the interest of brevity, I will provide a condensed summary of the history in Mr Watson-Munro’s report and Frank’s affidavit, in the course of which I will separately summarise Ms Jervis’s affidavit.

18. [25]

    Mr Watson-Munro characterised the family and personal childhood history that he took from the applicant as “a complex clinical and developmental history, characterised by significant trauma during his formative childhood years”. It was as follows:

19. [26]

    Mr Watson-Munro stated that the applicant’s cognitive issues, apparently related to the head injury, included “considerable problems in the classroom referable to concentration, as well as behaviour”. The tendered newspaper article, in the Armidale Express, entitled “Boy (3) kicked by horse”, dated 18 October 1991, concerned this injury. It referred to the injury as a “depressed skull fracture” and stated that the applicant had presented himself at the “house gate with a head wound”. He was taken by air ambulance to Camperdown Children’s Hospital.

20. [27]

    Frank stated that their parents were using drugs and became addicted to heroin when the applicant was “very young”. Shortly after the applicant’s return from hospital, they separated. The applicant stayed with their mother and his two brothers moved away with their father. In 1992, their parents reunited and their mother was approved for state-funded accommodation in Byron Bay. Their parents remained “heavy users of heroin and [the applicant] was exposed to this from a very early age and all through his formative years”. The two older brothers left the home “as soon as we were old enough”. In 1992 (at which time I note the applicant would have been 4 or 5 years old), their father was charged with drug offences, for which he served about four years in prison.

21. [28]

    Ms Jervis’s affidavit, which was filed in the Local Court at Coffs Harbour in support of an application for the applicant to be taken into State care, provides an independent and contemporaneous picture of the subsequent phase of the applicant’s life. She stated that in September 1997 (when the applicant was aged 8) he presented with his mother at Byron Bay hospital with burns to his fingers “caused while he was cooking dinner in hot oil”. His mother was “staggering, incoherent, and unable to give a history”. The notification could not be followed up because the family moved.

22. [29]

    On 15 September 1999, Ms Jervis was notified that the applicant (then aged 10) was selling firecrackers and cannabis at Dorrigo Public School. She stated:

23. [30]

    Ms Jervis continued:

24. [31]

    Mr Watson-Munro referred to the period when the applicant, aged 9, went to reside with his father, as “unstable and dislocated”. Mr Watson-Munro continued:

25. [32]

    Frank stated that when their mother returned to Byron Bay to care for the applicant, she resumed her use of heroin. The applicant attended high school between 2000 and 2004, then obtained employment and moved in with friends. He worked in a chicken factory, an ice factory and then in a restaurant.

26. [33]

    In 2006, the applicant had a serious car accident when a vehicle he was driving collided with a tree. He was charged with driving with a mid-range PCA and driving while his licence was suspended. He suffered spinal fractures and was hospitalised for two weeks, following which he wore a body brace for six months and was prescribed analgesic medication.

27. [34]

    Frank stated that in 2008 (when the applicant would have been aged about 20), he moved in with one of his brothers in Sydney, which was a period of stability, including employment (with Telstra) for two years. In 2010 their mother was diagnosed with cancer. The applicant moved back to Byron Bay to be her full-time carer. She died in 2012. Frank stated that the applicant was in a relationship from 2012 to 2014, “living a stable and relatively happy life” in the Northern Rivers region. They broke up in 2014 and the applicant returned to Sydney, moved in with his elder brother and regained employment with Telstra in a managerial role. In 2016, he returned to Byron Bay and his relationship recommenced.

28. [35]

    Frank continued:

29. [36]

    Mr Watson-Munro obtained a drug and alcohol history from the applicant, to the effect that he commenced drinking alcohol at age 15 and by the age of 16, his alcohol consumption was “problematic” and he abused it “in varying degrees of intensity” since then. He reported occasional alcoholic blackouts. He was using MDMA and hallucinogens at the age of 16 and had had “a significant involvement with illicit drugs, including cocaine, crack cocaine, ice, MDMA, cannabis, in addition to benzodiazepines and Seroquel”.

30. [37]

    The applicant elaborated on his drug use following the breakdown of his relationship in 2019 and his involvement in a new relationship with a user of drugs, at that time:

31. [38]

    The applicant told Mr Watson-Munro that the 2020 home invasion led to a further escalation in his drug use:

32. [39]

    The applicant described his level and circumstances of supplying drugs prior to supplying the UCO:

33. [40]

    The applicant told Mr Watson-Munro that, by the time of his arrest, he was using up to 5g of cocaine a day, which he would convert to crack cocaine and smoke. A side-effect was that he would eat less. He is about 180cm tall and at the time of his entry into custody he weighed 69kg. At the time of the interview with Mr Watson-Munro, he weighed 99kg. As well as ice and cocaine, he used Xanax, Valium and Seroquel to “come down” and sleep.

34. [41]

    Following the 2006 car accident, the applicant suffered from chronic pain syndrome. He continued to be affected by pain arising from his back injury, for which he took Panadeine Osteo three times daily, as well as an anti-depressant. Mr Watson-Munro stated:

35. [42]

    As to treatment for his drug addiction, Mr Watson-Munro noted:

36. [43]

    Mr Watson-Munro diagnosed the applicant as having significant symptoms of a severe and recurring Depressive Disorder, an Anxiety Disorder, features of Post Traumatic Stress Disorder (PTSD), which developed following the home invasion, and a Substance Use Disorder, which was in partial remission. He considered that, although the applicant’s physical health had improved on remand, he remained significantly depressed, which has been exacerbated by the prison restrictions occasioned by lockdowns, partly due to the COVID-19 pandemic.

37. [44]

    Mr Watson-Munro noted that the applicant “expressed appropriate remorse for his behaviour”, elaborating as follows:

38. [45]

    Mr Watson-Munro opined that there was a nexus between the applicant’s childhood neglect by his parents and his mental health issues, which in turn led to his drug and alcohol abuse:

39. [46]

    According to Mr Watson-Munro, the applicant’s mental health was further compromised by setbacks in his early adulthood, ultimately leading to this offence:

40. [47]

    Mr Watson-Munro recommended treatment for the applicant, involving:

41. [48]

    He noted that the applicant expressed a strong desire to receive treatment and get his life back on track:

42. [49]

    These were prepared by the applicant’s solicitor, based on subpoenaed records of lockdowns in the prison where the applicant had been held on remand. While there were some discrepancies, the sentencing judge accepted that they demonstrated that over the period of the applicant’s remand until 16 March 2022, he had been in lockdown for a total of about 2,000 daylight hours.

43. [50]

    The Crown submitted in writing that the applicant’s motive was for a financial or material reward and that he could be properly described as “a high-level street dealer” since he on-sold substantial quantities which could have been used for further on-sale by the purchaser. The offence fell in the mid-range of seriousness.

44. [51]

    The Crown accepted that the applicant had “a history of underlying mental health issues and that he has faced a number of challenges throughout his life”. The Crown continued:

45. [52]

    The Crown submitted that the applicant’s sentence material:

46. [53]

    Accordingly, the Crown submitted, the applicant should be denied the mitigatory effect of a finding that he had adequately accepted and acknowledged the harm of his offending behaviour that is otherwise available pursuant to s 21A(3)(i) of the Sentencing Procedure Act.

47. [54]

    The Crown submitted that the applicant’s criminal record denied him leniency and noted that he was subject to a CCO at the time of the commission of the offence. It submitted that his prospects of rehabilitation could not be described as “good”. The Crown underscored “the strong need for general deterrence in cases involving prohibited drug supply”.

48. [55]

    The Crown conceded that, in light of the applicant’s history of substance abuse and mental health issues, it would not be heard against a finding of special circumstances to assist his rehabilitation by a longer period on parole.

49. [56]

    At the sentence hearing, the Crown indicated that it did not require Mr Watson-Munro for cross-examination. Madam Crown withdrew the submission that the applicant was not genuinely and appropriately remorseful for his offending behaviour.

50. [57]

    In written submissions, the defence noted that the applicant had a relatively minor prior criminal record and that he had not previously received a sentence of imprisonment. It referred to the traumas and neglect of his childhood consequent to his heroin-addicted parents and noted that he had been drug-free in prison. His role was that of “a go-between or courier” and his involvement other than through the UCO was “limited to street level deals in the range 1 to 3 grams … motivated very much by his own addiction”.

51. [58]

    While a prison sentence was inevitable, leniency was warranted by the applicant’s reduced moral culpability and prospects for rehabilitation and “a substantial period on parole” was appropriate to facilitate his continuing rehabilitation.

52. [59]

    Under the heading “objective seriousness”, the defence submitted that the applicant was targeted by police in order to identify his upstream supplier, which occurred with the ultimate identification of the co-offender and Mr MacDonald.

53. [60]

    As to subjective matters, the applicant referred to his personal and family history as being relevant to the sentencing exercise in multiple ways, most significantly in the sense contemplated in the principles enunciated in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [43] and [44].

54. [61]

    The applicant was experiencing a loss of visits and “protracted COVID lockdowns” which had not assisted his depressive and anxiety disorders which weighed “more onerously on him in the sense contemplated by CDPP v De La Rosa [2010] NSWCCA 194 at [177]”.

55. [62]

    In oral submissions, counsel for the defence acknowledged that the applicant’s motive for the offences was for profit, but only in the sense that he was paying off a drug debt and the opportunity to “scrape off” some cocaine to feed his own addiction. He submitted that the offence was “below mid-range” on the basis that the applicant was essentially a low-level street level dealer who had been encouraged by the UCO to supply larger quantities.

56. [63]

    Although the applicant had committed the offences while on conditional liberty, his criminal record was comprised of relatively minor matters that had not attracted a sentence of imprisonment and, unlike many offenders with a history of prohibited drug addiction, the applicant had not resorted to property or personal violence offences to support his addiction. As to his prospects for rehabilitation, he had a demonstrated capacity for hard work and was keen to return to the work force.

57. [64]

    The sentence was delivered ex tempore on the same day as the sentence hearing. The sentencing judge acknowledged the applicant’s legislative entitlement to a discount of 25 per cent for his early plea of guilty and that the Form 1 matters would be taken into account. His Honour summarised the agreed facts and set a framework for determining the objective seriousness of the offence:

58. [65]

    His Honour referred to the defence material, accepting the passage from Frank’s affidavit quoted at [35] above, that the applicant was motivated to engage in supply to repay a large drug debt and feed his addiction:

59. [66]

    His Honour accepted that prior to the involvement of the UCO, the applicant was supplying drugs at a significantly lower level:

60. [67]

    His Honour continued:

61. [68]

    His Honour found that the applicant’s criminal record, although “relatively modest”, disentitled him to leniency because he was on conditional liberty at the time due to the CCO for an offence of possessing a prohibited drug, which was imposed on one of the dates that he supplied cocaine to the UCO.

62. [69]

    The sentencing judge referred briefly to the account of the applicant’s background that emerged from the psychologist’s report and the affidavits of his brother and Ms Jervis. His Honour found:

63. [70]

    His Honour referred to prosocial aspects of the applicant’s personal history; his work and relationship history, the care he provided for his terminally ill mother and his struggles with chronic pain. The sentencing judge noted that in 2018, following the break-up of the applicant’s relationship, he resorted to drug use but was assisted out of that situation by his brothers, who set him up in a business. However, when a new relationship collapsed in 2020:

64. [71]

    His Honour accepted that the applicant was remorseful for his conduct:

65. [72]

    His Honour referred to the diagnosis by Mr Watson-Munro of the applicant’s “unremitting symptoms of depression, anxiety and low self-esteem dating back to his formative pre-adolescent years” and said he understood that it was not submitted that they:

66. [73]

    His Honour quoted the passage from Mr Watson-Munro’s report that is extracted above at [45], referred to traumatic events in the applicant’s life and then set a framework of relevant sentencing principles:

67. [74]

    As to sentencing for drug matters, his Honour referred to Parente v R [2017] NSWCCA 284 at [109], that “a consistent message of deterrence from sentencing judges is necessary” and at [110], that “protection of the community will usually be of significance”.

68. [75]

    As to the relevant principles for sentencing persons who come from a profoundly deprived background, his Honour quoted Bugmy at pars [43] and [44] of the plurality’s judgment:

69. [76]

    His Honour underscored the presence of the word “may” in those paragraphs:

70. [77]

    As to sentencing principles concerning addiction, his Honour referenced the judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 of Wood CJ at CL at [215]–[274], particularly [273(c)]. At [273], the Chief Judge condensed the relevant principles as to how drug dependency should be approached in the sentencing exercise for the offence of armed robbery:

71. [78]

    In apparent reference to [273(c)(ii)] of Henry, his Honour said:

72. [79]

    His Honour went on to state that free choice and personal responsibility for one’s addiction applies, even where the explanation for it is self-medication, citing R v SY [2003] NSWCCA 291 per Whealy J at [62], in which his Honour said that the “taking of drugs in an addictive fashion is almost always likely to involve self-medication but that cannot of itself be a mitigating factor”. Similarly, the sentencing judge quoted from Bichar v R [2006] NSWCCA 1 at [23] where Howie J observed that “the fact that some traumatic or injurious event results in a person using drugs does not mean that drug addiction is a matter of mitigation”.

73. [80]

    His Honour then made the following findings of fact in respect of the applicant’s background:

74. [81]

    His Honour then turned to the applicant’s prospects for rehabilitation, noting his determination, positive history of employment and his family support. His Honour declined to make a positive finding as to his prospects for rehabilitation in view of his history of resorting to drug use “when things become emotionally difficult for him”.

75. [82]

    His Honour found special circumstances on two bases: first, because it would assist his rehabilitation; and second, because of the punitive effect and loss of opportunity to access medical treatment due to the 2,000 hours of lockdown he had experienced up to March 2022, which his Honour calculated to be half of all daylight hours over that period of his remand.

76. [83]

    His Honour had regard to the purposes of punishment that are set out in s 3A of the Sentencing Procedure Act. In relation to general deterrence, his Honour gave a particularly regional focus:

77. [84]

    As noted, the sentence imposed by his Honour was an overall sentence of 6 years imprisonment, to commence on 22 April 2021, which was when he entered into custody, with a non-parole period of 3 years and 6 months. The non-parole period was thus 71 per cent of the overall sentence. The applicant’s earliest release date is 21 October 2024.

The application for leave

1. [85]

   The applicant submitted that, although the sentencing judge accepted that his motive for the offence was, in part, to pay off a drug debt, in the passage extracted at [67] above, that was equated with “accruing a financial benefit”, thus contributing towards his Honour’s finding of a mid-range objective seriousness. It was submitted that, although a motive of repaying a drug debt is not mitigatory, this characterisation was a material error in circumstances in which it was relied upon as a basis for determining that the offence was mid-range in objective seriousness.

2. [86]

   The applicant relied upon Cicciarello v R [2009] NSWCCA 272 as a statement of principle, coincidentally arising from similar factual circumstances. In that case, an appeal against sentence was heard for the same offence, namely, supplying a commercial quantity of a prohibited drug (390.31g of ice), constituted by a UCO soliciting multiple supplies from the offender. At first instance, the sentencing judge accepted evidence by the offender to the effect that all of his sale proceeds were used to support his drug habit. His Honour found that the offence involved a series of criminal acts which were committed for financial gain and that the offence fell into the mid-range of objective seriousness. On appeal, the Court (Allsop P, Fullerton and McCallum JJ) said:

3. [87]

   The applicant further submitted that the objective seriousness was diminished by the sentencing judge’s finding that the applicant was a small street-level dealer absent the supplies to the UCO, which were not disseminated to the public. All of these matters had been squarely raised by the applicant in written and oral submissions and accepted by the sentencing judge.

4. [88]

   The respondent noted that the assessment of objective seriousness is a discretionary exercise, such that an asserted error is reviewable only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499 (House v The King) at 505; see Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37] and Simpson J, as her Honour then was, at [46]. Reference was made to authority to the effect that it is unnecessary for a sentencing court to fix objective seriousness on a scale, citing McDowall v R [2019] NSWCCA 29 at [35]-[36] (see also DH v R [2022] NSWCCA 200 at [33] and [60]).

5. [89]

   The respondent acknowledged the proposition that, in determining objective seriousness, a motivation of financial gain, which may be an exacerbatory factor, is not to be equated with obtaining funds to pay off a drug debt or feed a drug habit. The respondent submitted that the sentencing judge identified the factors taken into account in determining the objective seriousness of the offence, including the applicant’s personal addiction to drugs, the origin of that drug use, the fact of his drug debt and a clear increase in supply volume that the offending represented, as well as his demonstrated capacity to source large quantities of drugs and handle large amounts of money, and the trust the upline suppliers held him in. The sentencing judge, thus, fairly and comprehensively considered the issues relevant to the objective seriousness of the offending and no error is disclosed in the exercise of the discretion.

6. [90]

   Engaging in a drug offence, such as supply or importation, in order to repay a drug debt or to finance a drug addiction is not mitigatory of the offence’s objective seriousness. However, doing so for financial reward, either exclusively or beyond what is required to repay a drug debt, may increase the objective gravity of the offending: De La Rosa at [261]. See also Quayle v R [2010] NSWCCA 16 per R A Hulme J (Grove and Simpson JJ agreeing) at [53].

7. [91]

   To the extent that engaging in such offending behaviour to repay a drug debt or finance a drug addiction may be construed as a form of seeking financial gain, as the sentencing judge did, it is the purpose of that financial gain that determines its relevance in the sentencing exercise. In Hejazi v R [2009] NSWCCA 282, Basten JA (Howie and Hislop JJ agreeing) said, at [12], referring to Cicciarello at [17]:

8. [92]

   In the passage extracted at [64] above, the sentencing judge was cognisant of the potential relevance “on some of the authorities” of motive in fixing the objective seriousness of the offence. His Honour identified the applicant’s motive as “to accrue … a financial benefit, namely … paying off a drug debt”. His Honour did not, in terms, identify it as an aggravating factor, but in view of the sentencing judge’s finding that, absent his involvement with the UCO, the applicant was “selling comparatively small amounts involving 1 gram at a time and at the most 3 grams to support his habit”, it is not apparent how else the offence could attract a finding of mid-range seriousness.

9. [93]

   I am satisfied by the manner and context of the reference to “financial gain” that his Honour treated it as the applicant’s primary motive and a significant factor in fixing the objective seriousness of the offence, whereas the reasons for the financial gain, to pay off a drug debt to those who had carried out the home invasion and to skim drugs for his addiction, was of little consequence in that exercise. In my view, his Honour fell into error in placing little or no weight on the applicant’s motive for engaging in the offence in determining its objective seriousness.

10. [94]

    Accordingly, I would uphold this ground.

11. [95]

    The applicant addressed grounds 2 and 3 together.

12. [96]

    The applicant submitted that the sentencing judge erred in having a “siloed” approach in finding that the applicant’s profound childhood deprivation did not warrant a reduction in his moral responsibility. In particular, his Honour erred in divorcing his consideration of the evidence of the applicant’s drug abuse, which his Honour found to be the immediate causal factor in the commission of the offence, from his mental illness and his childhood neglect. It was submitted that his Honour should have found that the applicant’s background of profound childhood deprivation reduced his moral culpability by contributing to his mental health issues and his addiction to prohibited drugs, and thus ultimately to his offending behaviour.

13. [97]

    It was submitted that the sentencing judge’s understanding of what Wood CJ at CL meant by the term “a very young age” in Henry, that is, “someone around the age of nine or ten or 11, not necessarily of teenage years” (in the passage extracted at [78] above), is without foundation. The applicant referred to the judgment of Simpson J (as her Honour then was) in Henry at [336] to [341], which also dealt with the relevance of an offender’s background to their drug addiction in the sentencing exercise, submitting that:

14. [98]

    Alternatively, the applicant submitted that, pursuant to ground 3, the sentencing judge failed to give adequate weight to these aspects of the applicant’s subjective case. Although the sentencing judge stated that the applicant’s background would be taken into consideration “as part of the material relevant to the instinctive synthesis”, it is evident that the sentencing judge failed to give “even the minimum necessary weight” to the relevant Bugmy factors, so that the resulting sentence was manifestly excessive: Hoskins v R [2021] NSWCCA 169 at [79] per Beech-Jones J (as his Honour then was).

15. [99]

    Further to ground 3, the applicant referred to comparative sentences for the same offence in which a lesser sentence was imposed despite the objective circumstances being arguably more serious and the subjective features being less compelling, none of which involved Bugmy factors.

16. [100]

    The respondent submitted that ground 2 concerned an attribution of weight in the sentencing exercise, thus requiring a demonstration of error in the House v The King sense, which was not disclosed. The sentencing judge noted the planned nature of the offence rather than it being impulsive, and weighed the applicant’s unfortunate background against the seriousness of the offence, attributing “much less weight” to the latter, which his Honour was entitled to do.

17. [101]

    The respondent referred to decisions of this Court in which the Bugmy principles had been held to not apply to the sentencing exercise for the offence of drug supply, because it was not an impulsive offence. In Taysavang v R; Lee v R [2017] NSWCCA 146, Simpson JA (as her Honour then was), McCallum and Fagan JJ agreeing, said, at [42]:

18. [102]

    In any event, the sentencing judge expressly took the evidence of the applicant’s childhood neglect into account in the passage extracted at [80] above. The respondent submitted that the sentencing judge did not fall into any error of principle in the way he approached that evidence. The weight given to that evidence, and to sentencing principle generally, was a matter for the sentencing court.

19. [103]

    As to ground 3, the respondent submitted that the sentence imposed was not unreasonable or unjust or manifestly excessive having regard to the relevant circumstances, including the following: the maximum penalty (20 years) and standard non-parole period (10 years); the three Form 1 offences and their maximum penalty (15 years); the objective seriousness of the offence, which was properly found to be mid-range; and the need for denunciation.

20. [104]

    His Honour’s reasoning as to the relevance of the applicant’s personal history was as follows. His Honour accepted the history, as recorded in the psychologist’s report and the affidavits of the applicant’s brother and the District Officer, as accurate and found that it constituted “profound childhood deprivation”. His Honour accepted that this deprivation in the applicant’s formative years caused what the psychologist diagnosed as longstanding symptoms of depression, anxiety and low self-esteem which, in turn, led to him “self-medicating” with prohibited drugs and alcohol from an early age.

21. [105]

    The sentencing judge found that, at various times in his life, the applicant had managed “to rise above that seriously disadvantaged background” and other misfortunes, including the head injury when he was aged 3, the 2006 car accident when aged 18 and subsequent chronic back pain, and the experience of caring for his terminally ill mother for two years from when he was aged about 20.

22. [106]

    The evidence that the applicant overcame these setbacks was that he “managed to finish high school” (although I note that he finished high school in 2004, when he would have just turned 16, suggesting that he left at Year 10), and found and held employment from time to time, including that “he worked hard and was doing well” when his brothers set him up in the lawn-mowing business.

23. [107]

    The sentencing judge attached some significance to a finding he made, in the passage extracted at [80] above, that the applicant’s background: “has not impacted upon his capacity to appreciate the wrongness of the behaviour that he engaged in … [and] was not impulsive, it was planned, it was deliberate, it was carried out over a three-month period”. The sentencing judge’s reasoning culminated in a conclusion that the applicant’s background did not warrant a reduction in his moral culpability because:

24. [108]

    In other words, the strides made by the applicant in overcoming his adversities, although sporadic, had been sufficiently successful to break any causative relationship, if there ever had been, between the damage done to his moral compass by the neglect he experienced in his childhood and his offending behaviour. In any event, his drug use, which was the immediate context of him supplying drugs (to repay a drug debt and skim drugs for his own use), commenced in his mid-teens and did not involve cocaine.

25. [109]

    His Honour’s reasoning assumes that a reduction of the moral culpability of an offender due to their profound childhood deprivation is precluded if their offence is committed with significant planning beforehand, rather than it being an impulsive act, and they knew it to be wrong and, prior to the offence, they had demonstrated a capacity to live a pro-social life.

26. [110]

    An offender who planned the offence for which they are being sentenced, when that factor is considered with all the relevant evidence, may not receive a reduction of the offender’s moral culpability; see for example Hoskins at [57], where Brereton JA (Basten JA and Beech-Jones J agreeing) stated that:

27. [111]

    However, it is incorrect to state that an offender’s moral culpability cannot be reduced pursuant to an application of the Bugmy principles if the offence is pre-planned. In Taysavang, Fagan J at [42], Simpson JA and McCallum J (as their Honours then were) agreeing, considered factors that were relevant to the determination that the offender’s moral culpability could not be reduced:

28. [112]

    In Harris v R [2021] NSWCCA 322, Dhanji J at [82], Simpson AJA and I agreeing, considered that a determination by the sentencing judge to reduce the applicant’s moral culpability for an offence involving planning (armed robbery) was not inconsistent with Taysavang:

29. [113]

    Three recent examples from judgments of this Court that involved a reduction of the offender’s moral culpability in the context of an application of the Bugmy principles without criticism, where the offence was of a type that involved a degree of pre-planning, are: Chiarlini v R [2023] NSWCCA 227 at [21] and [37] (supplying a large commercial quantity of methylamphetamine); Baines v R [2023] NSWCCA 302 at [71]–[76] (a planned gangland execution); and Harris v R [2023] NSWCCA 174 at [79] and [84] (armed robbery).

30. [114]

    As to whether an offender’s awareness that the offence is wrong and their earlier positive achievements are pivotal considerations, in my view, the observations by the plurality in Bugmy at [43] and [44] that profound childhood deprivation “may compromise the person’s capacity to mature and to learn from experience”, that the effects “do not diminish with the passage of time” and apply “notwithstanding that the person has a long history of offending”, acknowledge that its impact on an offender’s moral compass may be embedded and is not necessarily, or easily, responsive to a change in circumstances for the better. In the case of Chiarlini, the applicant was of prior good character, having finished high school, studied accounting and law at university and worked in accounts departments and as a law clerk, before committing the offence.

31. [115]

    The sentencing judge cited the judgment of Wood CJ at CL in Henry at [273(c)(ii)] in which his Honour referred to a diminution of personal responsibility for an addiction if it occurred at “a very young age”. As noted in the passage extracted at [78], the sentencing judge determined that the Chief Judge meant “someone around the age of nine or ten or 11, not necessarily of teenage years”. I note that the respondent concedes that “the applicant’s drug use is accepted to have initially commenced at a relatively young age” and has not referred to authority for the proposition advanced by the sentencing judge.

32. [116]

    It follows that the sentencing judge applied incorrect principles when determining whether the applicant’s moral culpability could be reduced, pursuant to an application of the Bugmy principles, thus establishing error in the sense of House v R.

33. [117]

    Accordingly, ground 2 is made out.

34. [118]

    Error having been established in grounds 1 and 2, it will be necessary to re-sentence the applicant, unless no different sentence should be passed: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35], [42] per French CJ, Hayne, Bell and Keane JJ. The successful challenges against the sentencing judge’s findings as to the objective seriousness of the offence and the applicant’s level of moral culpability warrant a lesser sentence.

35. [119]

    In those circumstances, it is unnecessary to consider grounds 3 and 4. In the resentencing exercise, I will have regard to the sentence that was passed on the applicant’s co-offender.

Resentence

1. [120]

   On resentence, the applicant reads an affidavit by him filed on 19 September 2023, which attests to his progress though the prison classification system to a point of him having been on a work release program in the community since August 2023. He has completed training programs through TAFE in various vocational areas, including welding and fabrication. He has maintained a close relationship with his brothers via audio visual communications (AVL) and through occasional excursions with them into a nearby town. He continues to suffer from back pain and depression, for which he is receiving drug therapy. Regrettably, he has been told that he did not qualify for treatment programs related to his offence, so he remains without the benefit of a drug rehabilitation program.

2. [121]

   As to the objective seriousness of the offence, I note the maximum penalty and the standard non-parole period, which indicates the seriousness with which parliament regards such offences. The quantity of cocaine involved is twice the commercial quantity and is approximately at the mid-point between a commercial and large commercial quantity, which is 1kg. I note that the offence is a rolled-up charge of nine separate supplies on eight different dates in a three-month period. I take into account the three Form 1 offences.

3. [122]

   I find that the applicant’s motive for the offence was to repay a drug debt, for which he had recently suffered a home invasion and an assault, and to feed his drug addiction to cocaine, by him skimming some of the drugs he supplied to others. Of particular significance is the fact that, absent the involvement of the UCO, the applicant was a street supplier of between 1g and 3g of cocaine. As noted in authorities cited at [88] above, it is unnecessary to fix the objective seriousness of the offence on a scale and I decline to do so.

4. [123]

   The applicant’s moral culpability is significantly reduced, by reason of two factors, which to some extent overlap. I find that there is a nexus between the nature of the offence and Form 1 offences and the profound childhood deprivation that he suffered as a child. When aged 8 years old, the applicant was caught supplying cannabis in primary school at his father’s behest, which grimly resonates with the nature of the offence for which he is being re-sentenced. He is the victim of shocking neglect by both parents, who were heroin addicts throughout his childhood and ensconced him in their criminal activities to feed their addictions. His two older siblings were not as exposed as he was to their parents’ downward spiral, leaving home as soon as they were able, and then doing their best as adults to help the applicant. I accept that the applicant’s resistance to resorting to the supply of prohibited drugs to feed his drug habit and pay his drug debt was substantially weakened by the drug-related criminal environment in which his parents raised him, despite his past determined efforts to move on from that childhood experience, with his brothers’ assistance.

5. [124]

   The applicant’s moral culpability is also reduced, although modestly, by his mental health diagnoses, in particular, his depression and anxiety, which contributed to his decision to engage in the offending behaviour. I note the evidence that the applicant’s diagnosed depression has made his conditions of incarceration more onerous, which I take into account: De La Rosa at [177].

6. [125]

   I find that the applicant is genuinely remorseful for committing the offence and that his prospects of rehabilitation are reasonable; and that the applicant’s progress in the prison system is encouraging.

7. [126]

   I note that the applicant’s co-offender, who was engaged in the same enterprise, was sentenced by a different judge (Hunt DCJ) on 16 November 2023 for the offence of taking part in the supply of a commercial quantity of cocaine, being 286g contrary to s 25(2) of the Act. That amount related to supplies made by the applicant on four dates in exchange for a total sum of $109,500. The sentencing judge found that his motive was financial gain and that he “laundered” $100,000 of the amount that he received from the applicant through a crypto currency account that he opened. The sentencing judge found that he was genuinely remorseful and that he had “excellent” prospects for rehabilitation. He received a 10 per cent discount for his plea of guilty from a starting point sentence of 30 months. His Honour took into account 9 months of pre-sentence actual and quasi-custody, and sentenced him to a period of 18 months’ imprisonment from the date of sentence, to be served by way of an ICO.

8. [127]

   There are disparities in the facts of the offenders that tend towards a finding that the offence committed by the co-offender was objectively less serious and his subjective factors were more favourable, for example, although the co-offender was the upline supplier to the applicant, the quantity of cocaine he supplied was almost half that for which the applicant falls to be resentenced and he had high prospects for rehabilitation. In formulating the fresh sentence for the applicant, I take the co-offender’s sentence and the sentencing judge’s findings into account.

9. [128]

   I have regard to the purposes of sentencing in s 3A of the Sentencing Procedure Act. I am mindful of the importance of general deterrence in sentencing offenders for offences involving the supply of prohibited drugs: Parente at [109]-[110]. However, the need for general deterrence is attenuated by the applicant’s diagnosed mental health issues which have contributed to the commission of the offence: DPP (Cth) v De La Rosa at [177]. I am satisfied that no sentence other than a sentence of imprisonment is appropriate: s 5(1) of the Sentencing Procedure Act.

10. [129]

    I would reduce the otherwise appropriate sentence by 25 per cent for the applicant’s early plea of guilty.

11. [130]

    I find special circumstances on the basis that the applicant will require a significant period of supervision, and ideally treatment, to address the criminogenic factors of his tendency to resort to the use of prohibited drugs under pressure and his related mental health issues. It is appropriate that the departure from the statutory ratio of the balance of term to the non-parole period be substantial, in view of the need for supervision (and ideally treatment) for the consequences of his ingrained childhood experiences on his mental health.

12. [131]

    I would resentence the applicant to imprisonment for a period of 4 years and 6 months, backdated to commence on 22 April 2021, with a non-parole period of 2 years and 11 months. Accordingly, the applicant would become eligible for parole on 21 March 2024.

Orders

1. [132]

   I propose the following orders: