Snounou v R

1. [1]

   ADAMSON JA: I agree with McGuire J.

2. [2]

   N ADAMS J: I agree with the orders proposed by McGuire J for the reasons provided by his Honour.

3. [3]

   McGUIRE J: The applicant, Michael Snounou, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Sutherland SC in the District Court of New South Wales on 12 July 2024.

4. [4]

   The applicant pleaded guilty on 26 November 2021 to two offences of possession of a precursor (iodine) intended for use in the manufacture or production of a prohibited drug contrary to s 24A(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). Each of those offences carries a maximum penalty of 10 years imprisonment.

5. [5]

   A sentence hearing occurred on 28 March 2024. On 12 July 2024 the applicant was sentenced to an aggregate sentence of 10 years imprisonment backdated to commence on 22 August 2021 with a non-parole period of 7 years and 6 months. The non-parole period expires on 21 February 2029 and the balance of the sentence expires 21 August 2031.

6. [6]

   In respect of Count 1, which relates to the applicant’s possession of 800 kilograms of iodine in September 2013, an indicative sentence of 7 years imprisonment (8 years before discount) was indicated. In respect of Count 2, which relates to his possession of 1,000 kilograms of iodine in March 2017, an indicative sentence of 7 years and 8 months imprisonment (8 years and 10 months before discount) was indicated.

7. [7]

   The applicant relies on the following grounds of appeal:

Factual background

1. [8]

   The sentencing judge in his remarks on sentence made factual findings consistent with the agreed facts tendered on sentence. Those factual findings, which are not challenged in this Court, can be summarised as follows.

2. [9]

   In April 2009 the applicant became a director of Cyndan Manufacturing Pty Ltd (“Cyndan”) which is a commercial business involved in the sale and manufacture of chemical, commercial and industrial cleaning and associated products. Cyndan produced and sold a product called a ‘teat sanitiser’ which apparently has application in the dairy industry. The teat sanitiser produced by Cyndan contained iodine.

3. [10]

   Iodine is a precursor which can be used in the manufacture of methylamphetamine.

4. [11]

   Cyndan purchased large quantities of iodine in its name, the majority of which were used for legitimate business purposes. A portion of the iodine purchased in the company’s name, relevant to the counts, was provided by the applicant to third parties. Those third parties then used the iodine in the manufacture of methylamphetamine.

5. [12]

   Between 23 December 2013 and 4 September 2017 New South Wales Police located iodine in clandestine drug laboratories where it was being used in the manufacture of methylamphetamine. The iodine located in the laboratories was in the form of pellets, known as “prills”, which were stored either in serialised cylindrical containers or in unlabelled white buckets into which iodine prills had been decanted. The serial numbers on the cylindrical containers were linked to Cyndan and corresponded to the serial numbers on purchase orders placed by and deliveries made to Cyndan. The iodine located in the laboratories had been supplied by the applicant from the stock ordered by Cyndan.

6. [13]

   Relevant to Count 1, at the direction of the applicant Cyndan purchased 800 kilograms of iodine from Ruakura Pty Ltd (“Ruakura”) on 13 September 2013 and a further 400 kilograms on 16 September 2013. Those purchases cost $70,400 and $35,200 respectively.

7. [14]

   The iodine ordered from Ruakura on 13 September 2013 came in 20 kilogram cylindrical containers, each of which had a unique identifying batch number. On 13 September 2013 Cyndan’s warehouse manager telephoned the applicant to inform him that a delivery of iodine would be made to the applicant’s house because the Cyndan warehouse was about to close for the day. The applicant then took possession of 400 kilograms of iodine from a courier near his residential address in Bellevue Hill. He then placed the iodine into a motor car which had Cyndan signage and drove to an auto-electrical business in Marrickville. At that location the applicant and another male unloaded the iodine containers and placed them into a white van.

8. [15]

   On 16 September 2013 the 400 kilograms of iodine purchased from Ruakura was delivered directly to the auto-electrical business in Marrickville and unloaded. The police had the auto-electrical business under surveillance. Shortly after the delivery, a Toyota HiAce van reversed into a garage at the premises. That van left a short time afterwards.

9. [16]

   Between 23 December 2013 and 13 January 2015 New South Wales Police located quantities of iodine at clandestine drug laboratories at Ourimbah, Jerrys Plains, Cattai, Kenthurst and Matroota which were being used in the manufacture of methylamphetamine. The iodine at those locations was stored in containers bearing serial numbers which corresponded to the purchases of iodine made by Cyndan in September 2013 or were otherwise identified by handwritten labels linked to Cyndan. A drum containing 20 kilograms of iodine prills was also located in a vehicle which contained an apparatus with methylamphetamine residue, methylamphetamine in liquid and tablet form and 40 kilograms of ephedrine.

10. [17]

    Relevant to Count 2, between 23 March 2017 and 30 March 2017 the applicant contacted a chemical company based in New South Wales and ordered 1,000 kilograms of iodine at a total cost of $58,575. A deposit of $19,000 was paid.

11. [18]

    On 9 March 2017 the applicant contacted a chemical distributor, Redox Pty Ltd (“Redox”), and enquired about the delivery date of the iodine. On 15, 17 and 24 March 2017 the applicant communicated with a transport company, TNT, in relation to the delivery date.

12. [19]

    The applicant contacted Redox on 21 March 2017 to discuss payment of the outstanding balance.

13. [20]

    On 23 March 2017 the consignment of 1,000 kilograms of iodine was delivered to Cyndan’s premises. The applicant was then observed pouring the iodine from its serialised packaging into unmarked white buckets. He decanted 400 kilograms of iodine into the buckets, which he then loaded into his motor car. The applicant drove the vehicle containing the buckets to an address in Point Piper and the next day, after police had confirmed that the buckets were still in the vehicle, drove to a property at Rhodes where he met with an unknown male. The vehicle entered a garage. Later when he exited the property the applicant’s vehicle no longer contained the white buckets. The unknown male later left the property in a Toyota HiAce van and drove to South Granville. There he loaded the buckets into a truck driven by a Mr Brian Farrugia.

14. [21]

    On 24 March 2017 the applicant telephoned a Cyndan employee and requested that he arrange for a person named Michael Horton to repackage the iodine the following day, which was a Saturday. In a later telephone call, the employee said that the task would be completed by midday the following day.

15. [22]

    At Cyndan’s premises on Saturday 25 March 2017 Mr Horton was observed decanting the iodine from its serialised containers into white buckets. He then telephoned the applicant and informed him that the task was complete.

16. [23]

    On 30 March 2017 an unknown person attended Cyndan’s premises where he and Mr Horton used a forklift to move 600 kilograms of iodine outside of the warehouse.

17. [24]

    On 19 July 2017 and 14 September 2017 police searched premises at Glenwood and Towrang where they located quantities of iodine in buckets which were identical to those used at Cyndan to decant the iodine.

18. [25]

    On 4 September 2017 police stopped a vehicle driven by Brian Farrugia as it was leaving a property in Towrang, New South Wales. Police located 11 kilograms of methylamphetamine in that vehicle. A search warrant was then executed at an address in Towrang where the police located a large clandestine laboratory which was capable of producing methylamphetamine. Two white buckets were located at that premises. Those buckets, which were identical to those previously provided by the applicant, contained 35 kilograms of iodine.

19. [26]

    On 14 September 2017 at a property in Kulnura the police located numerous containers and apparatus used in the manufacture of methylamphetamine and white buckets identical to those used in the decanting of the iodine at Cyndan.

Proceedings on sentence

1. [27]

   The sentence hearing proceeded before Judge Sutherland SC in the District Court on 28 March 2024.

2. [28]

   At the sentence hearing the Crown tendered a bundle which was marked Exhibit 1 and contained the indictment, agreed facts, the applicant’s conviction history, the applicant’s custodial history and statements of Dr Daniel Coughlan, forensic chemist. A bundle was tendered on behalf of the offender which was marked Exhibit 2 and contained a letter of apology of the applicant, various character references, a psychological assessment report by Megan Godbee, forensic psychologist, dated 19 January 2024, documents relating to appointments with Joanne Haldane, psychologist, an affidavit of Amanda Moores, a manager at Redox, sworn 3 August 2018, a statement of Jill Olbrechts, sales coordinator at SQM Chemicals (a chemical producer and supply company), dated 16 July 2018 and a two page extract of the committal hearing transcript dated 8 November 2019.

3. [29]

   The applicant did not give evidence at the sentence hearing.

Remarks on sentence

1. [30]

   The applicant was sentenced on 12 July 2024. In the remarks on sentence the sentencing judge made factual findings consistent with the summary of agreed facts. No issue has been taken on this appeal in respect of those factual findings.

2. [31]

   The applicant was originally charged on 22 February 2018. The sentencing judge set out the circumstances of the delay in this matter following its committal to the District Court for trial, including plea negotiations, changes in legal representation, hearing of pre-trial arguments, the applicant’s initial offer to plead guilty to these counts in November 2021 and his ultimate guilty pleas in November 2023 which were then accepted by the Crown in satisfaction of the indictment.

3. [32]

   In relation to objective seriousness of the offences the sentencing judge took into account the monetary value of the precursor, the applicant’s active role in acquiring the iodine for the purpose of its use by others in the manufacture of prohibited drugs and steps taken to disguise the source of the iodine. The sentencing judge found that the offending “substantially exceeds any perceived mid-range” for offences of that type.

4. [33]

   The sentencing judge took into account the psychological assessment report by Ms Godbee, the character references, the applicant’s letter of apology and the applicant’s criminal history in his findings regarding the applicant’s subjective circumstances.

5. [34]

   The applicant was born in November 1976. He told Ms Godbee that his family were Palestinian refugees and had been impacted by war. The applicant and his family lived in Abu Dhabi until the applicant was around 8 years old, at which time the family emigrated to Australia. The applicant described that his family experienced some financial difficulty when he was a child. He also described trouble settling in a new country and that he experienced some racism.

6. [35]

   The applicant completed year 12 and then went on to complete undergraduate and postgraduate degrees in civil engineering. After he finished secondary school the applicant worked casually for Australia Post, but left this job after he sustained a fractured hip in a motor vehicle collision when he was 18 years old. The applicant was later employed as a civil engineer for a construction company and went on to run his own construction company for a number of years.

7. [36]

   The applicant is married and has three children. He told Ms Godbee that he experienced financial pressure due to his purchase and maintenance of a business, as a result of which he started taking cocaine in his thirties. He further described in his letter of apology his “serious financial difficulties” as a result of buying out the co-owner of his business.

8. [37]

   The applicant reported to Ms Godbee that he experienced depressive symptoms in 2017 as a result of his excessive worry. He said that he used cocaine to alleviate this and was funding his cocaine use through the business. He told Ms Godbee that his drug use between 2015 and 2018 impaired his thinking.

9. [38]

   The sentencing judge referred to the character references tendered on behalf of the applicant at sentence. In his reference, Elias Sleiman describes that he met the applicant whilst studying civil engineering at the University of Sydney in 1996 and that they had remained close friends since. He described the applicant as selfless and generous and described the applicant’s efforts in starting his own business. He stated that he observed the applicant appearing to experience periods of depression. He said that the applicant’s deep regret and guilt in relation to his actions were clear to those around him. A character reference from a Mr Peter Miller describes the applicant as “a man of integrity” who Mr Miller is certain “regrets the events that have resulted in these charges”. At the time of sentence Mr Miller had known the applicant for 14 years, initially through business, later becoming close friends. Mr Rene Ferris in his reference describes that he has known the applicant for over 10 years and that he has seen an improvement in the applicant after seeking psychological help, that he has shown remorse for his actions and has sought rehabilitation through his relationship with his family.

10. [39]

    His Honour noted that defence material indicated that the applicant had a confirmed psychologist appointment with Ms Joanne Haldane on 13 February 2024, but there was no evidence or report in relation to his attendance.

11. [40]

    In his letter of apology the applicant described Cyndan’s financial difficulties at the time of the offences and that selling the iodine was a means to obtain money quickly in order to address those difficulties. He described the impact of this financial pressure on his marriage and that he turned to drug use as a coping mechanism. He stated that at the time he first sold iodine to the person in Marrickville he had some idea of what the iodine was going to be used for, but turned a blind eye and tried to not think about it too deeply. The applicant expressed remorse for his offending and its impact on the community, victims, potential victims and his family. He expressed a desire in the future to invest in waste management technology and said that he was currently studying law at Southern Queensland University.

12. [41]

    The applicant has some criminal history dating from when he was around 19 years old. In 1996 he was convicted of offences of dishonestly obtaining property by deception, causing public mischief, receiving, obtaining a financial advantage and making a false or misleading statement in relation to which he was sentenced to a total of 500 hours of community service. In 2010 he received a 3-year recognisance order without conviction pursuant to s 19B of the Crimes Act 1914 (Cth) for one count of importing a border-controlled drug without commercial intent. The applicant reported to a psychologist that this offence related to him being found with cocaine in his pocket on his return from an overseas business trip. In April 2015 he was convicted and fined $500 in relation to offences of possessing a prohibited weapon and possession of ammunition without a licence or permit. In July 2023 he was sentenced to a 16- month community correction order in relation to offences of assault occasioning actual bodily harm, common assault, stalking or intimidating with intent to cause fear and contravening an apprehended domestic violence order. He was convicted in June 2023 of driving a motor vehicle while suspended, being a second or subsequent offence, in relation to which he received a $600 fine and a 6-month disqualification.

13. [42]

    On sentence the Crown tendered a number of statements from forensic chemist Dr Coughlan which specified the amount of methylamphetamine which could have been produced by reference to the amount of iodine missing from the containers at the clandestine laboratories. The sentencing judge in his remarks noted that those calculations indicated that the theoretical amounts of methylamphetamine able to be produced in relation to each count were 480 kilograms of methylamphetamine for the iodine the subject of Count 1 and 600 kilograms of methylamphetamine for the iodine the subject of Count 2.

14. [43]

    An affidavit of Ms Amanda Moores from Redox, tendered on behalf of the applicant on sentence, sets out the details of the supply of iodine to Cyndan prior to the events referable to the offences. The sentencing judge noted that the iodine quantities deliveries referred to in that affidavit were relied on to support the submission that the amounts of iodine in the applicant’s possession, which were the subject of the two counts, were not exceptionally large amounts in the context of Cyndan’s business and that the applicant did not take special steps to obtain the iodine.

15. [44]

    The sentencing judge referred to a number of comparative cases to which the Court was referred at the sentence hearing. Those cases were Salama v R [2023] NSWCCA 141, R v Cousins & Anor [2002] NSWCCA 340; (2002) 132 A Crim R 444, R v Walker [2023] NSWCCA 219, Takiari & Anor v R [2009] NSWCCA 84, Mori v R [2021] NSWCCA 32, El Kheir v R [2019] NSWCCA 288, R v Campbell; R v Smith [2019] NSWCCA 1.

16. [45]

    His Honour applied a discount of 12.5% to each of the indicative sentences, which was comprised of a 10% discount for the late pleas of guilty and an additional discount of 2.5%. His Honour described the basis for the additional discount as follows:

17. [46]

    His Honour considered the principle of totality in imposing an aggregate sentence, however noted that the two offences were separated by three and a half years and represented discrete offending.

Ground 1: Error in failing to take into account the applicant’s good prospects of rehabilitation, or alternatively in failing to give reasons

1. [47]

   By Ground 1, the applicant contended that the sentencing judge erred either by failing to take into account the applicant’s good prospects of rehabilitation or in the alternative by failing to explain in his reasons how that matter had been taken into account.

2. [48]

   It was submitted on behalf of the applicant that one of the mitigating factors the sentencing judge was required to take into account by operation of s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was that the applicant had good prospects of rehabilitation (s 21A(3)(h)). In support of that submission counsel for the applicant referred to evidence and submissions during the sentence hearing below on the topic of prospects of rehabilitation. That evidence included references in the psychological report of Ms Godbee to the positive steps towards rehabilitation taken by the applicant including addressing his need for psychological treatment, engaging in offence specific intervention and abstaining from the use of cocaine. Attention was also directed to submissions made on behalf of the applicant in the sentence proceedings which included that the applicant recognised the psychological factors which contributed to his offending and was committed to addressing those with professional help. The submissions below also, under a heading “rehabilitation”, referred to parts of the psychologist report to form the basis for a submission that the Court should find that the applicant’s prospects of rehabilitation were “very good” because he had addressed many of the factors which contributed to his offending, was engaging with treatment and had pro social community and familial support. The applicant’s counsel in the proceedings below also relied on the applicant’s letter of apology to further support the submission concerning prospects of rehabilitation.

3. [49]

   The applicant drew attention to the absence of any finding in relation to prospects of rehabilitation, or indeed any reference to that topic in the remarks on sentence. It was submitted that the absence of any reference to the applicant’s prospects of rehabilitation was in stark contrast to the emphasis placed on that topic by counsel appearing for the applicant on sentence.

4. [50]

   The applicant submitted that the failure to make any reference to prospects of rehabilitation establish that the sentencing judge either failed to take it into account, or alternatively failed to explain how it had been taken into account.

5. [51]

   The respondent conceded that Ground 1 had been made out and that as a consequence the Court’s duty to re-sentence the applicant had been enlivened.

6. [52]

   The respondent distinguished the present situation from that referred to in Bhatia v R [2024] NSWCCA 28 at [34] where, having heard evidence as to prospects of rehabilitation, the sentencing judge declined to make a finding about the issue. It was submitted that in the present case the absence of any reference to the evidence or submissions made on the topic permitted this Court to conclude that the sentencing judge failed to consider that factor at all, or alternatively failed to explain how that factor had been taken into account.

7. [53]

   Further, the respondent submitted that an inference was not available that the sentencing judge reached a favourable but unexpressed view concerning the prospects of rehabilitation, because there was evidence of the applicant’s other criminal convictions which might be considered to point away from a positive finding. It was submitted that in those circumstances there was an obligation on the sentencing judge to make a finding as to prospects or alternatively to explain in his remarks on sentence how that matter had been taken into account.

8. [54]

   I accept that the Crown’s concession concerning Ground 1 was correctly made. Although it is not a function of a sentencing judge to address all possible sentencing considerations, a sentencing judge is required to consider and decide issues “that arise in the proceedings before them”: Meoli v R [2021] NSWCCA 213 (“Meoli”) at [42].

9. [55]

   The High Court explained in DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32] – [33] that not every fact, finding or consideration omitted from reasons will ground a successful appeal. There the High Court observed at [33]:

10. [56]

    An assessment of the evidence and submissions at the sentence hearing demonstrates that prospects of rehabilitation was a significant issue in the sentencing proceedings. Counsel appearing for the applicant below pressed the Court to make a finding that the applicant had good prospects of rehabilitation and on one occasion referred to the applicant’s rehabilitation as “extensive”.

11. [57]

    The transcript of the sentencing hearing records counsel for the applicant below submitting:

12. [58]

    In written submissions relied on in the Court below the applicant submitted that his prospects of rehabilitation were “very good” and made reference to the applicant addressing many of the factors that contributed to the index offending.

13. [59]

    The evidence in the subjective material for the applicant, in particular the psychologist’s report, emphasised the need for the sentencing judge to directly address the issue of rehabilitation.

14. [60]

    Further, in the Court below the Crown did not expressly make any submissions against a finding that the applicant had good prospects of rehabilitation.

15. [61]

    The issue of prospects of rehabilitation was raised and given significance in the evidence and submissions in the Court below. It was clearly a matter “relevant and known to the court”. The Court was required by s 21A(3)(h) to take it into account in determining the appropriate sentence. The absence of any express finding about prospects and the absence of any explanation concerning how that matter had been taken into account was an error.

16. [62]

    Accordingly I am satisfied that Ground 1 has been made out.

Ground 2: Error by taking remorse, delay and other unidentified subjective matters into account by way of a quantified 2.5% discount

1. [63]

   By Ground 2, the applicant contended that the sentencing judge made an error of principle by taking remorse, delay and other unidentified subjective matters into account by way of a quantified discount of 2.5%. The applicant submitted that those matters should instead have been taken into account in an unquantified way as part of the process of instinctive synthesis.

2. [64]

   The applicant submitted that the approach taken by the sentencing judge in the passage of the remarks on sentence as set out above at [43] was contrary to authority. In Markarian v the Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) the High Court rejected the “two-tiered” approach to sentencing of starting with a maximum penalty and then making proportional deductions from it based on factors relevant to the case, holding that sentencing judges were instead required to take into account objective and subjective factors by way of an instinctive synthesis.

3. [65]

   The applicant submitted that the sentencing judge’s finding of the additional 2.5% discount was an impermissible quantification of individual factors.

4. [66]

   The applicant also submitted that providing for a quantified discount which took into account, amongst other things, the issue of delay was impermissible because delay ought to have been taken into account in arriving at the relevant starting points for the sentences rather than by application of some discount after determining the starting points.

5. [67]

   It was also submitted that the sentencing judge’s reference to “various factors” and “other matters to which I have referred” as forming the basis for the 2.5% discount was an error because no explanation was provided as to what those unspecified factors or matters were or how they were taken into account in calculating the 2.5% discount.

6. [68]

   The respondent conceded that Ground 2 had been made out in that the sentencing judge erred in failing to adopt the “instinctive synthesis” approach required by Markarian.

7. [69]

   The respondent also conceded that the sentencing judge erred by including the issue of delay as part of the factors taken into account in calculating the 2.5% discount. It submitted that the remarks on sentence establish that his Honour arrived at the starting points, before any discounts, for both counts based on objective factors only and then proceeded to discount those starting points by reference to discounts for the guilty pleas and, erroneously, for various subjective factors including remorse and delay.

8. [70]

   I accept that the Crown’s concession concerning Ground 2 was correctly made. Providing a quantified discount for certain specified, and various unspecified subjective factors is contrary to authority. As the High Court said in Markarian, sentencing courts should not engage in arithmetical processes attempting to add or subtract items from some subliminally derived figure in order to calculate the term of a sentence.

9. [71]

   In addition, the lack of clarity in the remarks on sentence concerning the various factors and other matters taken into account as part of the arithmetical process leading to the 2.5% discount is also indicative of error.

10. [72]

    Accordingly, Ground 2 has been made out.

Ground 3: Error in failing to determine whether the applicant had facilitated the administration of justice for the purposes of s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

1. [73]

   By Ground 3, the applicant contends that the sentencing judge erred in failing to determine whether the applicant had facilitated the administration of justice.

2. [74]

   Section 22A of the Crimes (Sentencing Procedure) Act relevantly states:

3. [75]

   Counsel appearing for the applicant below submitted as follows:

4. [76]

   The written submissions relied on by the applicant below stated:

5. [77]

   The Crown below did not dispute the disclosures of information made by the applicant and the resultant withdrawal of 27 charges.

6. [78]

   The applicant submitted that the sentencing judge did not expressly reject the submission invoking s 22A. Rather, the sentencing judge said the following in relation to the charges that had been withdrawn:

7. [79]

   The applicant submitted that the above reference by his Honour, to the extent it was a rejection of the submissions that the applicant had facilitated the administration of justice, was an error. It is submitted that the disclosure of information which brought about the withdrawal of numerous charges plainly facilitated the administration of justice and resulted in a significant saving of court time. The applicant submitted that, accordingly, s 22A was enlivened and required the sentencing judge to properly consider the exercise of the discretion under that section. He submitted that the sentencing judge failed to determine the applicant’s submission that he facilitated the administration of justice within the meaning of s 22A and therefore the Court should have considered the exercise of the discretion under that section for a reduced penalty. The applicant submitted that if the sentencing judge’s remarks were intended to signal a rejection of the submissions made at first instance, any such rejection was an error and the reasons were inadequate because they did not expose the view that the sentencing judge took of the matter.

8. [80]

   The respondent conceded this ground of appeal. It was submitted on behalf of the respondent that the sentencing judge erred in not expressly determining whether the applicant had facilitated the administration of justice for the purposes of s 22A.

9. [81]

   I consider that the Crown’s concession concerning Ground 3 was correctly made.

10. [82]

    An assessment of the submissions made in the Court below establish that the applicant raised the issue of the Court exercising its discretion to reduce the penalty imposed on the basis of the applicant facilitating the administration of justice. It was raised a number of times and it was clearly raised as a significant issue for his Honour to determine.

11. [83]

    Section 22A involves the exercise of discretion. Section 22A, by specifying that the court “may impose a lesser penalty” does not mandate the imposition of a lesser penalty: see Camilleri v R [2023] NSWCCA 106; (2023) A Crim R 52 per Cavanagh J at [2]-[6]. However the passage quoted above at [78] as to the charge negotiations being “beneficial to both parties” is not, in my view, indicative that his Honour properly considered the exercise of the discretion under s 22A. His Honour’s remarks on sentence failed to resolve the applicant’s submissions made below that the applicant was entitled to a significant discount on sentence to allow for his “substantial” facilitation of the administration of justice. Failure to resolve that significant issue raised below with any certainty is demonstrative of error: Lee, Matthew v R [2016] NSWCCA 146 at [21].

12. [84]

    Accordingly, I am satisfied that Ground 3 has been made out.

Ground 4: Error in failing to take into account the state of the applicant’s mental health as a circumstance making his time in custody more onerous, or alternatively in failing to give reasons

1. [85]

   By Ground 4, the applicant contended that the sentencing judge erred either by failing to take into account mental health as a circumstance making conditions of custody more onerous or alternatively by failing to explain in the reasons how that matter had been taken into account.

2. [86]

   The applicant submitted that significant emphasis was placed on the issues of mental health and the impact on conditions of custody in the sentence proceedings below. It was submitted that the factual basis for findings concerning mental health and its consequences was established in Ms Godbee’s report in which she referred to additional difficulties which would be experienced by the applicant in custody because of his obsessive-compulsive disorder and comorbidity with depression and stress.

3. [87]

   Written submissions for the applicant in the Court below contended that Ms Godbee’s diagnosis and opinion was a proper basis for a finding that his mental health made custody more onerous. In oral submissions below the applicant placed further emphasis on the impact of the applicant’s mental health on his conditions of custody.

4. [88]

   It was submitted that, in light of the evidence and submissions, the sentencing judge ought to have considered the impact of the applicant’s mental health on the onerousness of his custody. The applicant submitted that the sentencing judge fell into error by failing to take account of the applicant’s mental health or its impact on making conditions in custody, or alternatively by failing to explain how it had been taken into account.

5. [89]

   The respondent accepted that the sentencing judge made no reference in the remarks on sentence to the applicant’s mental health as a circumstance making custody more onerous. It was accepted that significant emphasis had been placed on the issue in the Court below and that as a result the sentencing judge had an obligation to make a finding as to the applicant’s mental health and consider its relevance to sentence. The respondent conceded that Ground 4 had been made out.

6. [90]

   I accept that the respondent’s concession concerning Ground 4 was correctly made.

7. [91]

   An assessment of the evidence and submissions below demonstrates that mental health and its consequences were raised as significant issues in the proceedings.

8. [92]

   Ms Godbee reported that the applicant met the diagnostic criteria for obsessive-compulsive disorder, which she described as a “debilitating mental health condition” and that he also suffered from depression and stress. In relation to the impact of his mental health Ms Godbee said:

9. [93]

   Written submissions for the applicant below referred to the offender’s mental health and submitted:

10. [94]

    The transcript of the sentence hearing records counsel for the applicant below submitting:

11. [95]

    Because of the significance given to mental health and its consequences in the Court below it was “an issue that arose in the proceedings” and required consideration and determination by the sentencing judge: Meoli. The remarks on sentence, however, are silent on the impact of the applicant’s mental health on the onerousness of his custody.

12. [96]

    Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) requires a sentencing court to take into account an offender’s mental health in a number of potential ways. They include where mental health means that a custodial sentence may weigh more heavily on the offender because the sentence imposed will be more onerous on that person.

13. [97]

    The sentencing judge made no reference to De La Rosa, made no reference to the relevance of the applicant’s mental health on the sentencing exercise and/or to its impact on the onerousness of custody. I am satisfied that because significant reliance was placed on these issues by the applicant in the Court below it was necessary for the sentencing judge to expressly determine and provide reasons on the issues raised. The absence of any finding on these issues and the absence of any explanation concerning how they may have been taken into account was an error.

14. [98]

    Ground 4 has been made out.

Ground 5: Manifest excess

1. [99]

   Because patent errors have been found, Ground 5, the question whether the sentence imposed by the sentencing judge was manifestly excessive is hypothetical and need not be determined.

Resentence

1. [100]

   An affidavit of Jonathan Gardner affirmed on 10 September 2025 was read without objection in the event of resentence. That affidavit attached a psychological assessment report by Ms Lauren Linton dated 8 September 2025 and confirmation that the applicant had completed a “Remanded Domestic Abuse” course on 1 July 2025.

2. [101]

   Ms Linton’s report records that the applicant became visibly disappointed when discussing hygiene standards in custody and a lack of support in the prison environment. The report records that the applicant displayed heightened levels of vigilance and concern about contamination and privacy violations in custody and noted that those traits were consistent with obsessive-compulsive disorder. Ms Linton noted that these contributed to the applicant’s ongoing distress in custody.

3. [102]

   The report also records that the applicant believed his obsessive-compulsive disorder symptoms had worsened in custody and that he was feeling high levels of distress due to the cleanliness and conditions not meeting his high hygiene standards. He reported that the conditions of custody and an inability to adequately clean his personal space were a significant source of ongoing psychological distress. His frequent refusal to use communal facilities contributed to his social withdrawal. He frequently refuses to eat prison meals due to his hygiene concerns which had contributed to irregularities in his weight.

4. [103]

   The report notes that the applicant maintains a close relationship with his children but that he had only seen them twice because of his reluctance to expose them to the prison environment. Ms Linton noted that the applicant experienced obsessive and intrusive thoughts regarding the safety and well-being of his children and elderly father.

5. [104]

   Ms Linton’s clinical opinion was that the severity of the applicant’s obsessive-compulsive disorder symptoms and the incompatibility of the prison environment with his mental health needs resulted in him experiencing more onerous custodial conditions than the general inmate population.

6. [105]

   In the circumstances where the affidavit was unchallenged, I accept it and will have regard to it in resentencing applicant.

7. [106]

   In resentencing the applicant I have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act as well as aggravating and mitigating factors provided in ss 21A(2) and (3) as may be known to the Court and relevant.

8. [107]

   The applicant submitted that, although the quantity of the precursor was a relevant factor in the sentencing exercise, it was not determinative of objective seriousness. The applicant also submitted that the comparative cases referred to in the remarks on sentence mostly involved different substantive offences, and due to different objective and subjective circumstances did not establish any range of possible sentences for the present offending.

9. [108]

   The applicant submitted that some allowance for delay was appropriate in the circumstances. Those circumstances were that the applicant was sentenced more than six years after he was charged and more than two and a half years after he had entered guilty pleas in the District Court. The applicant contended that the extent to which allowance had been made for delay was inappropriate and insufficient.

10. [109]

    The respondent submitted that the applicant’s offending relevant to each count was objectively serious, not opportunistic and involved a degree of organisation and planning. The respondent also submitted that the sentencing judge was correct in describing the applicant’s use of Cyndan as a “Trojan horse” to provide a shield of legitimacy. It was submitted that a degree of accumulation was necessary to account for the separate and distinct periods of offending, and that the principles of general and specific deterrence required the imposition of significant sentences.

11. [110]

    The quantity of the precursor involved in each of the counts is a relevant but not determinative consideration. The relevant offence provision, s 24A of the Drug Misuse and Trafficking Act, does not contain any graded scale of quantities required for the proof of the offence. Consequently the offence applies to the broadest possible range of precursor quantities, from minute to immense. In that light, the quantities involved in each of counts 1 and 2, although substantial, could not be regarded as falling in the highest range of the scale of quantities.

12. [111]

    The offender’s role in the commission of the offences is a significant factor to be taken into account: Melikian v R [2008] NSWCCA 156; Elchiekh v R [2016] NSWCCA 225. Assessment of the role of an offender is directly relevant to an assessment of objective seriousness of the offending.

13. [112]

    General deterrence is a highly relevant consideration for sentencing those involved in drug-related offending. It is well recognised that the culpability of those who engage at any level in drug supply networks is significant and that deterrent sentences are necessary: R v Shi [2004] NSWCCA 135.

14. [113]

    Specific deterrence has a role to play in sentencing for drug-related offending. That is particularly so in cases where offenders have prior criminal records or where they engage in criminal conduct over an extended period of time.

15. [114]

    Applying those sentencing principles to the circumstances of this case I take into account the quantity of iodine involved in each count. Accepting that the quantities of iodine involved were substantial, I am not satisfied that they are at or even towards the highest end quantities comprehended by s 24A(1)(a). Additionally, there is no evidence to establish that the applicant knew anything about the hypothetical quantities of methylamphetamine which could have been produced from the iodine he possessed.

16. [115]

    In assessing the applicant’s conduct and role I take into account that he purchased the iodine through Cyndan, he arranged for the payment of the purchase price, took possession of the iodine, dealt with the iodine by arranging for its delivery, made arrangements for some of the substance to be decanted in an attempt to conceal its connection with the serialised canisters and recruited others to assist in the repackaging and decanting exercise.

17. [116]

    A proper assessment of that conduct establishes that the applicant, although playing a vital role in relation to obtaining and distributing the iodine, could not be considered to have played a role in the overall criminal enterprise of manufacturing methylamphetamine. There is no evidence to establish that the applicant had any connection with or knowledge about any of the drug laboratories at which the iodine was later discovered.

18. [117]

    I accept the evidence contained in his letter of apology that, although he turned his mind to what was to become of the iodine, he chose to turn a blind eye to that because of his need for finances.

19. [118]

    It is also relevant to the assessment of role and objective seriousness that the offender’s conduct for each of the counts occurred over only a small number of days.

20. [119]

    In relation to motive, the applicant admitted that he was financially motivated. Despite there being no evidence to establish the size of any profit he derived from the activity, I accept that his admitted motive increases the objective seriousness of the offences.

21. [120]

    Taking those factors into account I assess the objective seriousness of Count 1 as falling above the mid-range of objective seriousness for offences of this type. In relation to Count 2 I assess objective seriousness as being marginally higher than for Count 1, to take into account that Count 2 was committed over a marginally longer period of time and involved a greater quantity of iodine.

22. [121]

    In relation to aggravating factors under s 21A(2) I find that the offending involved some degree of planning and organisation on the applicant’s behalf. That planning and organisation related to the applicant purchasing the iodine, contacting chemical supply and distribution companies, arranging delivery, recruiting others to assist in the decanting process and arranging for the onward delivery of the drug to others. Although not opportunistic, I do not find that the planning or organisation involved was particularly sophisticated.

23. [122]

    I take into account as a mitigating factor under s 21A(3) that the applicant pleaded guilty. He was arrested on 22 February 2018 and was initially charged with 28 counts of possessing iodine with intention, one count of possessing hydrophosphorus acid with intention and two Commonwealth counts of importing drugs. Following a contested committal the matter was committed on 8 October 2020 to the District Court for trial.

24. [123]

    The applicant was arraigned in the District Court and the matter was listed for trial on 1 February 2021. The trial date was vacated and relisted for 23 August 2021. That subsequent trial date was also vacated.

25. [124]

    The applicant entered pleas of guilty to the present counts on 26 November 2021. Given the timing of those pleas, he is entitled to a 10% discount for the utilitarian value of his pleas in accordance with s 25D(2)(b) of the Crimes (Sentencing Procedure) Act. I also accept that his pleas of guilty are evidence of remorse.

26. [125]

    In relation to prospects of rehabilitation (s 21A(3)(h)), I accept that there was evidence in the Court below about steps taken by the applicant towards rehabilitation, including steps taken by him to stop using cocaine and to obtain professional assistance in dealing with his mental health and substance abuse. I also accept, relevant to prospects of rehabilitation, that before being sentenced in the Court below the applicant had spent more than two years in custody and a substantial period on bail and had not reoffended.

27. [126]

    In light of the applicant’s criminal history and the fact that for Count 2 the applicant re-offended three and a half years after offending for Count 1, I am unable to make a positive finding concerning his prospects of rehabilitation. In the circumstances his prospects could best be described as guarded. I also find that the applicant presents with a risk of reoffending, because of his criminal history and his re-offending within three and a half years.

28. [127]

    I also take into account the offender’s character and subjective circumstances noting that evidence of his prior good character in the form of character references has reduced significance for drug offending: Lam v R [2014] NSWCCA 50.

29. [128]

    Given that the offending occurred on separate occasions and involved distinct conduct and in order to apply the totality principle I am satisfied that there should be some notional partial concurrency and partial accumulation.

30. [129]

    On the issue of delay, I am satisfied that delay is a relevant consideration to be taken into account in the applicant’s favour. I also accept that the applicant facilitated the administration of justice for the purposes of s 22A in that he made voluntary disclosures to the prosecution which facilitated the administration of justice. Those disclosures resulted in significant saving of court time in that 27 charges were withdrawn by the prosecution. Accordingly, I am satisfied that a lesser penalty than would otherwise be imposed on the applicant is appropriate because of the degree to which the administration of justice was facilitated by his disclosures.

31. [130]

    Turning to mental health, I am satisfied that the applicant’s mental health should be taken into account on resentencing. The evidence referred to above establishes that he suffers from obsessive-compulsive disorder, anxiety and stress and that the comorbidity of those issues impact on his experience in custody. Applying the principles in De La Rosa I am satisfied that the evidence establishes that his obsessive-compulsive disorder is a mental disorder which makes the conditions of his custody more onerous.

32. [131]

    I propose that the Court set indicative sentences for the offences as follows:

    1. (1)

       In relation to Count 1, I indicate an indicative sentence of 3 years and 9 months after the 10% discount for the guilty plea; and

    2. (2)

       In relation to Count 2, I indicate an indicative sentence of 4 years after the 10% discount for the guilty plea.

33. [132]

    I find special circumstances justifying a departure from the ratio in s 44 of the Crimes (Sentencing Procedure) Act, arising from the applicant’s mental health, the additional onerousness of custody because of his mental health conditions and this being his first time in custody.

34. [133]

    I propose that the Court impose an aggregate sentence of 6 years and 9 months imprisonment, backdated to commence on 22 August 2021 and expiring on 21 May 2028 with a non-parole period of 4 years and 8 months expiring on 21 April 2026.

35. [134]

    Accordingly the applicant will first become eligible for release on parole on 21 April 2026.

Proposed orders

1. [135]

   I propose the following orders:

   1. (1)

      Grant leave to appeal;

   2. (2)

      Allow the appeal;

   3. (3)

      Set aside the sentence imposed on the applicant by the District Court of New South Wales on 12 July 2024 and in lieu thereof impose an aggregate sentence of 6 years and 9 months imprisonment commencing on 22 August 2021 and expiring on 21 May 2028 with a non-parole period of 4 years and 8 months commencing on 22 August 2021 and expiring on 21 April 2026;

   4. (4)

      The applicant will first be eligible for parole on 21 April 2026.