YM v R

1. [1]

   KIRK JA: I agree with Sweeney J.

2. [2]

   WALTON J: I agree with Sweeney J.

3. [3]

   SWEENEY J: The Applicant, to be referred to as “YM”, seeks leave to appeal against sentences imposed upon him in the District Court at Sydney on 14 May 2021 by her Honour Judge Tupman.

4. [4]

   He was sentenced following his pleas of guilty in the Local Court to three offences of importing a commercial quantity of a border-controlled drug, contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth), and three offences of supplying a large commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Each offence has a maximum penalty of life imprisonment.

5. [5]

   Fourteen other offences were taken into account on schedules pursuant to s 16BA of the Crimes Act 1914 (Cth) or on Form 1 documents.

6. [6]

   Her Honour imposed two aggregate sentences, one for the Commonwealth importation offences and the other for the drug supply offences. They were partially accumulated so that the total effective sentence imposed was 14 years imprisonment with a non-parole period of 10 years imprisonment, commencing on 14 February 2019. The sentences indicated by her Honour for individual offences were discounted by 50 per cent for the Applicant’s pleas of guilty and other appropriate reasons. The quantum of the discounts was not challenged in these proceedings.

7. [7]

   The offences and sentences indicated for each are as follows. The offence in sequence 1 was importing a commercial quantity of a border controlled drug, being 1651.99g of 3,4-methylenedioxymethamphetamine (MDMA), between 21 August 2018 and 7 March 2019, with a maximum penalty of life imprisonment. An offence of importing a marketable quantity of a border controlled substance, being 17.6 grams or 491 tablets of oxycodone, was taken into account pursuant to s 16BA of the Crimes Act, when the Applicant was sentenced for the offence in sequence 1. The discounted sentence indicated was six years imprisonment.

8. [8]

   The offence in sequence 2 was importing a commercial quantity of a border controlled drug, being 1916.3g of amphetamine, between 13 September 2018 and 4 March 2019, with a maximum penalty of life imprisonment. An offence of importing a marketable quantity of a border controlled substance, being 66.69g of cocaine, was taken into account pursuant to s 16BA of the Crimes Act when the Applicant was sentenced for the importation offence in sequence 2. The discounted sentence indicated was six years imprisonment.

9. [9]

   The offence in sequence 3 was importing a commercial quantity of a border controlled drug, being 4.56g (88,308 tabs) of lysergic acid diethylamide (LSD), between 2 October 2018 and 7 February 2019, with a maximum penalty of life imprisonment. The discounted sentence indicated was five years imprisonment.

10. [10]

    There were then three counts on an indictment, offences of supplying a large commercial quantity of a prohibited drug, each with a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment prescribed in Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

11. [11]

    The offence in Count 1 was supplying 773.07g of MDMA between 17 October 2018 and 14 February 2019. Taken into account, pursuant to ss 32 and 33 of the Crimes (Sentencing Procedure) Act, when the Applicant was sentenced for the offence in Count 1, were three offences of possessing a prohibited drug or restricted substance, being morphine, cannabis and diazepam, and one of supplying an analogue of MDMA. The discounted sentence indicated was five years imprisonment with a non-parole period indicated of three years imprisonment.

12. [12]

    The offence in Count 2 was supplying a large commercial quantity, 106,319 tabs, of LSD between 17 October 2018 and 14 February 2019. Taken into account pursuant to ss 32 and 33 of the Crimes (Sentencing Procedure) Act were four offences of supplying a prohibited drug, being N,N-dimethyltryptamine, dibutylone, oxycodone and cannabis leaf. The discounted sentence indicated was six years imprisonment with a non-parole period indicated of four years imprisonment.

13. [13]

    The offence in Count 3 was supplying a large commercial quantity, 1954.22g, of amphetamine between 17 October 2018 and 13 February 2019. Taken into account pursuant to ss 32 and 33 the Crimes (Sentencing Procedure) Act were three offences of supplying a prohibited drug, being two supplies of cocaine and one of alprazolam, and one offence of knowingly dealing with proceeds of crime, being $21,980. The discounted sentence indicated was five years, six months imprisonment with a non-parole period indicated of three years, six months imprisonment.

14. [14]

    Her Honour imposed an aggregate sentence, pursuant to s 53A of the Crimes (Sentencing Procedure) Act, for the Commonwealth importation offences of 11 years imprisonment with a non-parole period of six years imprisonment. That sentence commenced on 14 February 2019. For the offences against New South Wales laws her Honour imposed an aggregate sentence of 10 years imprisonment with a non-parole period of six years imprisonment to commence on 14 February 2023. Thus, the total effective sentence was 14 years imprisonment with a non-parole period of 10 years imprisonment. The Applicant will become eligible to be released on parole on 13 February 2029.

15. [15]

    The Applicant seeks to rely upon the following grounds of appeal:

16. [16]

    The sentencing Judge erred in dealing with the Applicant's mental illness by:

17. [17]

    In relation to Count 2, the sentencing Judge erred by finding, and taking into account, that the Applicant had supplied more than 10 times the large commercial quantity of LSD.

18. [18]

    The sentencing Judge erred in finding that the objective seriousness of Count 2 (large commercial quantity supply of LSD) and Count 3 (large commercial quantity supply of amphetamine) were above the middle of the range.

19. [19]

    The sentence imposed was manifestly excessive.

20. [20]

    The Applicant requires an extension of time to file his Notice of Appeal and relies on the Affidavit of his solicitor, Karen Espiner, affirmed 1 September 2022, in support of that application. The Crown did not object to the Affidavit or oppose the extension of time. The Notice of Intention to Appeal was filed on 28 May 2021, sentence having been delivered on 14 May 2021. The revised Remarks on Sentence were received by the Applicant’s solicitor on 1 February 2022. Counsel's advice was sought and received on what was regarded as a complex sentencing exercise. The Notice of Appeal was filed on 2 September 2022. The explanation for the delay is satisfactory.

The facts of the offences

1. [21]

   The facts found by the sentencing Judge, based on an agreed statement of facts, are summarised as follows.

2. [22]

   The Applicant committed the offences as the operator of a dark web marketplace, which was a commercial website within the dark web in which cryptocurrencies were used as payment for transactions. It was agreed, and her Honour found, that these offences were not isolated but that the Applicant had completed previous drug supply transactions using the dark web marketplace.

3. [23]

   The Applicant imported drugs by buying them on the dark web using cryptocurrency. He set up multiple post office boxes at various post offices, using false names, and when the imported consignments arrived at the post office boxes, he attended and collected the packages. He then delivered the packages to his co-offender, who stored and packaged drugs for sale to the Applicant's customers. She recruited her sister to assist her in packaging and delivering the drugs, although that was not known to the Applicant.

4. [24]

   Her Honour found that the Applicant was the principal in the importation and supply network and was the sole person responsible for importing the drugs in the way he did. Each of the three importation charges represented a rolled-up total for each of the relevant drugs imported over the periods represented in the charges. The offence in sequence 1, the importation of 1,651.99g of MDMA between 21 August 2018 and 7 March 2019, consisted of 17 envelopes or consignments addressed to four false names at various post offices, which were intercepted and seized by police before, on the date of, or after the Applicant's arrest. The 17.6g of oxycodone the subject of the s 16BA schedule taken into account in respect of sequence 1 was imported in the same way and detected by police at post office boxes or the co-offender’s premises.

5. [25]

   The offence in sequence 2 of importing 1916.03g of amphetamine between 13 September 2018 and 4 March 2019 consisted of multiple consignments addressed to two false names and post office boxes, which consignments were seized by police at post offices or at the Applicant's home on the day of his arrest. The cocaine the subject of the importation offence on the s 16BA schedule attached to sequence 2 was also addressed to a false name and post office box and seized by police.

6. [26]

   The offence in sequence 3, the importation of 4.56g or 88,308 tabs of LSD between 2 October 2018 and 7 February 2019, also consisted of consignments addressed to false name post office boxes at different post offices in the area where the Applicant lived, which were seized by police before and after the Applicant's arrest.

7. [27]

   In relation to the drug supply offences, between October 2018 and February 2019 police conducted controlled purchases of prohibited drugs from the Applicant's vendor page. The Applicant employed his co-offender to store, package and deliver orders of prohibited drugs through the post to customers who placed their orders using the marketplace.

8. [28]

   The offence in Count 1 of supplying 773.07g of MDMA between 17 October 2018 and 14 February 2019 refers to a rolled-up amount of the drug, incorporating some actual supplies and the quantity found in the co-offender’s premises on the date of her arrest on 14 February 2019 and deemed to be in her and the Applicant's possession for the purpose of supply. 243.59g of the drug was actually supplied in controlled purchases by police on at least 10 occasions during the offence period, the drugs mostly posted by the co-offender but on one occasion by the Applicant himself. The balance of the drug the subject of this charge, 592.48g of MDMA, was found in the co-offender’s premises when searched on 14 February 2019. The four drugs the subject of the Form 1 attached to Count 1 were also found in the co-offender’s premises on 14 February 2019, being 1.38g of morphine, 14.7g of cannabis leaf, 259.37g of diazepam and 24.37g of an analogue of MDMA.

9. [29]

   The offence in Count 2 of supplying 106,319 tabs of LSD between 17 October 2018 and 14 February 2019 consisted of 2,759 tabs purchased by police from the Applicant’s marketplace, on at least 20 separate occasions during the offence period, which were supplied after being packaged by the co-offender with some assistance from her sister, and being posted at various post offices by the co-offender and her sister, and by the Applicant himself on occasions. There were a further 103,560 tabs found at the co-offender’s premises on 14 February 2019, deemed to be jointly in her and the Applicant's possession for future supply. The four offences on the Form 1 attached to sequence 2 related to drugs found at the co-offender’s premises on 14 February 2019, being 92.27g of N,N–dimethyltryptamine, 85.5g of dibutylone powder, and 46g, or 323 tablets, of oxycodone, all deemed to be in the joint possession of the Applicant and his co-offender for the purpose of supply, and 542.4g of cannabis leaf in 18 resealable plastic bags found at the Applicant's parents’ home, deemed to be in his possession there for the purpose of supply.

10. [30]

    The offence in Count 3, the supply of 1,954.22g of amphetamine between 17 October 2018 and 13 February 2019, referred to 1.19kg of the drug actually supplied in response to controlled purchases by police, on at least 18 separate occasions, which were packaged and posted by the co-offender or her sister or, on occasions, the Applicant himself. A further 764.22g of amphetamine powder in various packages found in the co-offender’s premises on 14 February 2019, deemed to be in the joint possession of the Applicant and the co-offender for the purpose of supply, gave rise to the total quantity the subject of that charge. The offences on the Form 1 attached to Count 3 related to an actual supply of 6.54g of cocaine in response to four orders by police between 8 January 2019 and 31 January 2019, which orders were filled by being posted by the Applicant with the assistance of his co-offender and her sister, another 25.67g of cocaine found at the co-offender’s premises and deemed to be jointly in the Applicant’s and her possession for the purpose of supply, and 7.92g of alprazolam powder again found in the co-offender’s premises when searched and deemed to be in the joint possession of the Applicant and co-offender for the purpose of supply. The offence of knowingly dealing with proceeds of crime on that Form 1 document referred to a sum of $6,150 in cash given by the Applicant to the co-offender in part payment for her role in supplying drugs and a further sum of $15,830 found in the co-offender’s premises when searched on 14 February and deemed to be in the joint possession of the Applicant and co-offender, thus giving rise to the total of $21,980 the subject of that charge.

Her Honour's findings as to the objective seriousness of the offences

1. [31]

   Her Honour found that the two offences on the s 16BA schedule were towards the bottom of the range in terms of objective seriousness, and that the multiple matters on the Form 1 documents were generally of low criminality and could not increase the appropriate penalties for the offences for sentence.

2. [32]

   In assessing the objective seriousness of the importation offences her Honour took into account the quantity of the drugs as "not the chief factor, nonetheless… important", being “more than three times the commercial quantity of MDMA, two and a half times the quantity of amphetamine and two to three times the commercial quantity of LSD”. Her Honour took into account that the overall commercial quantities were reached by "rolling up" smaller individual quantities imported. Her Honour took into account that the Applicant was the principal and sole importer of all the drugs, that the importation was relatively sophisticated, using numerous post office boxes and a number of false identities to avoid detection, enhanced by the use of the dark web and cryptocurrencies, being sophisticated and involving a degree of planning. Her Honour took into account that the Applicant imported the drugs and did so with the intention of making a financial benefit himself by later supplying them, that his offending involved a course of conduct over six months for the first offence, and over four months for the other two offences, which only came to an end because of his arrest. Her Honour took into account that the Applicant imported more than one drug. Her Honour accepted that part of the Applicant's motivation for committing the offences was for financial reward but accepted that was not his primary or only motivation. Her Honour took into account that the Applicant did receive a financial reward from supplying drugs and also an increase in the value of his cryptocurrency holdings. Her Honour did not treat the financial reward the Applicant made from committing the offences as an aggravating factor, accepting that the offences of importing a commercial quantity of drugs involved a commercial element to the offending. Her Honour found that the Applicant's financial reward was not his initial or primary motivation, but that his initial motivation was to gain acceptance and a form of popular notoriety online because of his ability to use the dark web and cryptocurrencies. Her Honour found that while there was a profit “it was not as large as might have been expected by significant importations and to an extent was a by-product of the offending, not the primary motivation".

3. [33]

   Her Honour assessed the importation offences as "around the middle of the range of offences capable of being charged under these provisions.” Her Honour also took into account, pursuant to s 16A of the Crimes Act 1914, that the Applicant pleaded guilty, had expressed remorse and contrition, and that he cooperated with law enforcement agencies investigating his offences by providing arresting officers with information about drivers’ licences which were located and linked him to post office boxes to which the imported drugs had been sent, and also told them the location of various post office box keys and receipts.

4. [34]

   In assessing the objective seriousness of the supply offences her Honour said "I make the same findings in relation to objective criminality". Her Honour found the Applicant was the principal of the drug supply network, but took into account that the network consisted of only him and his co-offender and that the Applicant did not "import in individual very large quantities and then supply on via a very large interlinked network" but rather operated "a sophisticated backyard supply business operating out of an apartment or townhouse… in a relatively small… coastal town". Her Honour assessed the offence in Count 1 as "at about the mid range… or perhaps a little below", that Count 2, the LSD offence, was "somewhat above the mid range in terms of objective seriousness" and that the offence in Count 3 was "a little above the mid range… largely because of the quantity involved", her Honour having noted in respect of that offence that the large commercial quantity specified for amphetamine is 1kg and the amount the subject of the charge was "almost double the bottom of the weight range for this drug”.

Her Honour's findings about the Applicant's personal circumstances and mitigating factors

1. [35]

   Her Honour noted that the Applicant was 27 at the time of sentence and 25 when he was arrested, so between 24 and 25 when he was offending. She noted he had no prior criminal convictions and took his good character into account in his favour. Her Honour found that the Applicant had taken considerable steps towards his own rehabilitation and his prospects of rehabilitation were excellent, that he had overcome a significant drug addiction in custody, was well behaved and well regarded in custody, had worked in custody and had been the subject of an extortion attempt in custody, perceived to have arisen because of media misrepresentation of his wealth.

2. [36]

   Her Honour found that the Applicant had expressed genuine remorse and contrition and while in custody had developed insight into the effects of his drug supply offences.

3. [37]

   Her Honour noted that the Applicant had his family’s support, although his father has been diagnosed with a significant illness.

4. [38]

   Her Honour's consideration of the Applicant's mental condition is the subject of Ground 1.

(c) failing to find that his moral culpability was reduced.

1. [39]

   Before the sentencing Court were reports of Dr Stephen Allnutt, psychiatrist, and Patrick Sheehan, psychologist.

2. [40]

   Dr Allnutt had taken a history from the Applicant and reviewed his childhood/adolescent medical records, which recorded a history of diagnosed depression and substance abuse. Dr Allnutt expressed the opinion that the Applicant suffered from a “pre-existing and constitutional propensity to depression and anxiety". He thought the Applicant's symptoms were consistent with a persistent depressive disorder. He said the Applicant had a social anxiety disorder with anxiety in social situations which had been present for most of his life and persisted as at the date of his report in September 2020. Dr Allnutt also noted a history of substance use disorder starting at about the age of 16, which he thought was partly triggered by the Applicant seeking to self-medicate his social anxiety and deal with problems of self-esteem, which developed into a significant substance dependence throughout the period of his offending.

3. [41]

   Dr Allnutt said:

4. [42]

   Patrick Sheehan, who had interviewed the Applicant in September 2020, described the Applicant at interview as "slightly odd in his demeanour and seemed socially naïve… He described poor social appraisal and discomfort in complex social environments." Mr Sheehan reviewed the Applicant's school records which revealed increasing truancy, disengagement and failure to complete assessment items, and the Applicant reported severe bullying and social alienation at school, and social difficulties from a young age. Mr Sheehan said the Applicant described a complex psychiatric history and a history of childhood depression which was confirmed by his childhood medical records, including being prescribed antidepressants in 2011 when he was aged 17.

5. [43]

   Mr Sheehan said the Applicant reported:

6. [44]

   Mr Sheehan said:

7. [45]

   In written submissions relied on by counsel for the Applicant in the sentence hearing, counsel referred to the principles in which impaired mental functioning may be relevant to sentencing, relying on the Victorian Court of Appeal decision of R v Verdins (2007) 16 VR 269, and submitted that the Applicant’s impaired mental functioning somewhat reduced his moral culpability, that his severe social anxiety meant that specific deterrence should be somewhat moderated and submitted the Applicant was vulnerable to exploitation, extortion and bullying in custody because of his social anxiety.

8. [46]

   The statement of principles in Verdins is similar to that stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 and I will come to them shortly.

9. [47]

   In oral submissions in the sentence hearing, counsel for the Applicant submitted that his mental health would moderate the need for general deterrence, submitting that the Applicant was not "heavily involved in the criminal milieu" or committing his offences for profit.

10. [48]

    The sentencing Judge stated “sentences for importation offences of this type must reflect significant general deterrence. The importation of drugs into Australia is rightly regarded as very serious… Only a significant sentence will reflect the seriousness with which these offences are regarded and send a significant message to the community that those who would import drugs into the Australian community will be sentenced to significant periods of imprisonment." Her Honour stated "For reasons that will be referred to below, the need for specific deterrence here, in my view, is not great. I accept that the offender has taken considerable steps towards his own rehabilitation. The sentences do, however, need to reflect adequate punishment and denunciation for his behaviour."

11. [49]

    In terms of the Applicant's mental health her Honour found:

12. [50]

    Her Honour noted that the Applicant had to an extent suffered some of his custody in a more onerous circumstance because of an extortion attempt in prison not long after he was taken into custody.

13. [51]

    Counsel for the Applicant submitted that her Honour gave no reasons for her finding that although there was “some connection between his offending and his complex psychiatric history”, it did not play "any real part in a proper assessment of his moral culpability”. Counsel submitted that her Honour did not make any finding that the Applicant's mental health conditions moderated the role of general deterrence, despite counsel having made comprehensive submissions on that subject in the sentencing hearing and despite the evidence of the Applicant’s mental health conditions providing support for him not being an appropriate vehicle for the full force of general deterrence, and nor did her Honour address counsel’s submission or make any finding that the Applicant’s time in custody would be more onerous because of his mental illness.

14. [52]

    Counsel for the Applicant submitted that her Honour having accepted the evidence of the Applicant's chronic and long-standing persistent depressive disorder and social anxiety disorder and his related behaviours of reclusiveness, isolation and self-medicating with drugs leading to his serious drug addiction, having accepted that part of the reasons for his offending were his fascination with cryptocurrencies and the dark web and the sense of community he found in his online offending, having accepted that the Applicant did not think about the moral implications of his offending at the time, and having accepted there was "some connection" between the Applicant’s offending and his "complex psychiatric history", it was not reasonable for her Honour to find that that connection did not play a part in the assessment of his moral culpability, and that in discounting the effect of that evidence on the Applicant's moral culpability and not disclosing her reasons for doing so, her Honour erred in the exercise of her sentencing discretion.

15. [53]

    Counsel submitted that the Applicant's mental conditions were inextricably linked to his offending and shed light on why he committed his offences, such that his mental conditions did ameliorate his moral culpability. Counsel submitted that there was not a countervailing factor, such as the Applicant's mental condition posing a danger to the community, and her Honour having found a reduced need for specific deterrence and that the Applicant had excellent prospects of rehabilitation, there was not a basis for her Honour to diminish the weight placed on the finding of a connection between the Applicant's mental conditions and his offending so as not to ameliorate his moral culpability and moderate the need for general deterrence in sentencing him.

16. [54]

    In respect of general deterrence, counsel acknowledged that having regard to the importation offences, general deterrence “loomed large” as a significant sentencing factor, warranting the imposition of stern sentences. Counsel submitted that there was considerable support in the evidence for the Applicant not being an appropriate vehicle for the full force of general deterrence, in that his mental conditions differentiated him and his path to offending from the "typical offender" and also because the Applicant continued to suffer from a persistent depressive disorder and social anxiety disorder. Counsel submitted that since the sentencing Judge accepted the evidentiary basis for the submission that the Applicant's mental illness lessened the role of general deterrence, in particular the opinions of Dr Allnutt and Mr Sheehan that the Applicant's mental illness had a connection with the offending, it was incumbent on the sentencing Judge to expressly address the comprehensive submissions made by counsel on sentence that the Applicant's mental illness moderated the effect of general deterrence in sentencing him, but that her Honour made no reference to counsel’s submissions or the issue, but simply stated: "I also take into account the fact that sentences for importation offences of this type must reflect significant general deterrence. The importation of drugs into Australia is rightly regarded as very serious. Drugs wreak havoc on the Australian community in many ways... Further, the detection of importation offences is difficult and costly to the community. Only a significant sentence will reflect the seriousness with which these offences are regarded and send a significant message to the community that those who would import drugs into the Australian community will be sentenced to significant periods of imprisonment”.

17. [55]

    Counsel submitted that it was not contended that general deterrence would not remain a factor to be considered but that there should have been a moderating effect on the total effective sentence, but that her Honour did not take that mitigating factor into account.

18. [56]

    In respect of the issue of the Applicant's mental conditions making his time in custody more onerous, counsel submitted that the sentencing Judge took into account that the Applicant had suffered some of his time in custody in a more onerous circumstance because he had been subject to an extortion attempt, but did not respond to sentencing counsel’s submission that the Applicant's time in custody, both before sentencing and after sentencing, would be more onerous because of his mental illness, or refer to Patrick Sheehan's opinion that the Applicant was vulnerable in a custodial setting or the unlikelihood that Dr Allnutt’s proposed treatment plan would be facilitated in prison. Counsel referred to the evidence in support of the submission, including Mr Sheehan's opinion that the Applicant was vulnerable to predation in gaol due to his condition, including because he was unable to understand social cues, the evidence that he had limited access to mental health support in gaol for his long-standing chronic conditions and he could not realistically obtain the treatment recommended by Dr Allnutt, and thirdly that the Applicant having been physically abused regularly at school, he had a particularly acute vigilance of being attacked in gaol.

19. [57]

    The Crown relied on the principles about the effect on sentencing of mental illness, as stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194:

20. [58]

    The Crown relied on the judgment of Beazley P, Walton and RA Hulme JJ agreeing, in Jeffree v R [2017] NSWCCA 72 discussing the judgment of Simpson J in Aslan v R [2014] NSWCCA 114, that:

21. [59]

    The Crown also relied on the statement of McNaughton J in R v SS (a pseudonym) [2022] NSWCCA 258, referring to the observation of Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 at 51 that "where an offender acts with knowledge of what they are doing and with knowledge of the gravity of their actions, the moderation of the need for general deterrence need not be great".

22. [60]

    The Crown also relied on the statements of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that sentencing persons suffering from mental disorders is essentially a discretionary exercise requiring consideration of the variable facts and circumstances of individual cases and that it is “erroneous in principle to approach the law of sentencing as though automatic consequences follow” from a causal relationship in a particular case between a person’s mental disorder and the commission of an offence.

23. [61]

    The Crown submitted that on the evidence before her, her Honour’s judgment that the Applicant’s mental condition did not result in a reduction in moral culpability was fairly open to her, balancing the “cascade of events” to which Dr Allnutt referred, or the Applicant’s “atypical pathway to offending”, in Mr Sheehan’s expression, with the Applicant’s mixed motives for his offending.

24. [62]

    The Crown submitted that her Honour took the evidence of the opinions of Dr Allnutt and Mr Sheehan into account in a way advantageous to the Applicant in not finding that profit was his primary motivation for his offending.

25. [63]

    The Crown submitted that her Honour was not required to take the arguments about general deterrence into account in any greater detail than she did and that the Applicant was a suitable vehicle for general deterrence. The Crown submitted that this was so given the countervailing factors that the Applicant was not unintelligent, that he was, on his evidence, skilled in the use of the dark web, although he was reclusive his offending involved online trading in multiple drugs in significant amounts, he was the principal of the relatively sophisticated drug importation and supply operation and was at least partly motivated by profit, he employed his co-offender and paid her in cash and he had boasted to a journalist about his abilities, success and lifestyle as a “drug smuggler”. Therefore, the Crown submitted, “there was a clear need for weight to be given to general deterrence and the protection of the community, notwithstanding the mitigatory weight that might be given in the exercise of discretion in relation to his mental condition.”

26. [64]

    On the issue of onerous conditions in custody the Crown submitted that the evidence showed that the Applicant’s experience of custody had been more positive than anticipated, in that he was working as a sweeper in prison and was well regarded by prison officers, and that her Honour took that into account to the extent necessary.

27. [65]

    The Crown submitted that all of her Honour’s findings on these subjects were within the exercise of her discretion and did not involve error.

Consideration

1. [66]

   Her Honour summarised and accepted the evidence relied on by the Applicant in respect of his mental health conditions, accepted that his "social anxiety had a connection to his offending in that he took drugs to self-medicate [his] disorders”, found that "at the time [the Applicant] did not think about the moral implications of what he was doing in supplying large quantities of drugs into the community” and found that there was "some connection" between his offending and his "complex psychiatric history". It is not apparent from her Honour’s sentencing remarks that she took that into account when she considered the need for general deterrence to be reflected in the sentences. Nor did her Honour explain why having found "some connection" between the Applicant’s offending and his "complex psychiatric history" that that did not "play any real part" in "a proper assessment of his moral culpability". Although her Honour noted that the Applicant’s past experience in custody had been more difficult "to an extent" because of the extortion attempt soon after he began his time in custody, she did not refer to the matters relied on by counsel for the Applicant as to the likely effects of the custodial environment on his mental conditions and inability to obtain optimum treatment, although I accept that her Honour heard evidence from the Applicant that he had experienced improvements in his situation, including his anxiety, in custody, as the Crown submitted.

2. [67]

   Having found there was some connection between the Applicant’s diagnosed mental conditions and his offending, and there being clear evidence to that effect, was there error in the approach taken by the Judge in light of that evidence? Accepting that it is an evaluative decision, the evidence about the Applicant’s conditions showed that his capacity to reason about the wrongfulness of his offending conduct was impaired as a result of his documented and diagnosed conditions and thus his moral culpability was reduced a little, and because the Applicant’s impaired mental functioning contributed to his motivations for the offending, and thus differentiated him from a person who committed offences such as his purely for monetary gain and without such conditions, there was a basis to moderate the weight to be given to general deterrence in sentencing him. That was so even though general deterrence is important in sentencing for offences of importing a commercial quantity of drugs, including when people may be minded to do so utilising the dark web.

3. [68]

   Her Honour’s statement that the Applicant’s complex psychiatric history, though having "some connection" with his offending, did not play “any real part in a proper assessment of his moral culpability" demonstrates error in that her Honour’s conclusion was not supported by reasoning, did not deal with the arguments put, and in that way failed to take into account a material consideration. Her Honour failed to consider the effect of the Applicant’s documented and diagnosed mental disorders on his moral culpability, and failed to consider whether general deterrence should be given less weight in sentencing him because he was a less appropriate person to make an example of to others, because his mental disorders contributed, to some extent, to his offending. In not considering the effect of her finding that there was some connection between the Applicant’s conditions and his offending in respect of his moral culpability and the weight to be given to general deterrence in sentencing him, her Honour erred in the exercise of her sentencing discretion.

4. [69]

   Grounds 1(a) and (c) should be upheld.

Ground 2: In relation to Count 2, the sentencing Judge erred by finding, and taking into account, that the Applicant had supplied more than 10 times the large commercial quantity of LSD

1. [70]

   The finding the subject of this ground of appeal is found on page 15 of her Honour’s Remarks on Sentence. Having noted that the supply offence in Count 2 related to 106,319 LSD tabs, her Honour said:

2. [71]

   The Applicant submitted that her Honour's finding that the quantity supplied exceeded the large commercial quantity by more than 10 times was not open on the evidence or by operation of the statute, yet her Honour stated that that finding, which it is submitted was flawed, was material in her Honour's assessment of the objective seriousness of that offence.

3. [72]

   Counsel submitted that the sentencing Judge appeared to have based her calculation on the premise that each tab of LSD the subject of this charge was a "discrete dosage unit". "Discrete dosage unit" is defined in s 3 of the Drug Misuse and Trafficking Act as "an amount of the prohibited drug, not greater than the amount, if any, specified opposite the prohibited drug in column 6 of Schedule 1, which is prepared or apparently prepared for the purpose of being administered as a single dose." A discrete dosage unit of LSD is prescribed in the Schedule to the Act as 0.0002g. Counsel submitted that if one extrapolates from that prescribed "discrete dosage unit", 106,319 tabs contain over 21g of LSD, which is more than 10 times the large commercial quantity of 2g. However, counsel submitted there is no statutory presumption that a tab of LSD contains 0.0002g of LSD, that a discrete dosage unit is defined as one which does not exceed 0.002g of LSD. Counsel submitted there was no evidence adduced in the sentence proceedings to establish the quantity of LSD in each tab, that there was no evidentiary or statutory foundation to infer beyond reasonable doubt that the Applicant had supplied over 10 times the prescribed quantity of LSD. Counsel submitted that there is a deeming provision in relation to the specified indictable quantity and discrete dosage units of LSD, but that the deeming provision does not apply to the large commercial quantity of LSD because the threshold is defined by weight only.

4. [73]

   Counsel submitted that the erroneous application of the deeming provision erroneously elevated the weight of the LSD, which had a material impact on the assessment of objective seriousness and on the sentence for that offence.

5. [74]

   The Crown submitted that the Applicant had admitted that he supplied 106,319 tabs of LSD, that her Honour expressly recognised that the large commercial quantity prescribed for LSD in Schedule 1 of the Act was a weight, not a number of discrete dosage units, and her Honour recognised that while the weight of the drug was material, it was not the only issue which informs objective seriousness. The Crown submitted that her Honour's finding that "this is a very large quantity of LSD tabs and involves the potential supply of more than 100,000 doses of LSD into the community" was correct. During the hearing, in answer to a question from the presiding Judge, the Crown could not say that her Honour’s statement that the weight of LSD the subject of Count 2 was more than 10 times the threshold of the large commercial quantity was correct.

Consideration

1. [75]

   The finding or conclusion by her Honour that the quantity of LSD tabs the subject matter of Count 2 was "therefore more than 10 times the bottom of the weight range for charges of supplying the large commercial quantity" of LSD was a mistaken finding, without a basis in evidence or the operation of the statute. Her Honour’s statement which followed: "this is not the only issue informing objective seriousness, but it is material" shows that that factor clearly played a part in her Honour's assessment of the objective seriousness of that offence, even though her Honour went on to refer to the "potential supply of more than 100,000 doses of LSD into the community."

2. [76]

   Her Honour’s assessment of the objective seriousness of the offence in Count 2 overlaps in part with appeal Ground 3 but the error, which her Honour stated was material, affected her assessment of Count 2 and Ground 2 should be upheld.

Ground 3: the sentencing Judge erred in finding that the objective seriousness of Count 2 (the large commercial quantity supply of LSD) and Count 3 (the large commercial quantity supply of amphetamine) were above the middle of the range

1. [77]

   Counsel for the Applicant submitted that in assessing the objective seriousness of the offence in Count 2 as "somewhat above the mid range" and the offence in Count 3 as "a little above the mid range… largely because of the quantity involved", her Honour erred in the exercise of her discretion by placing undue significance or determinative weight on the weight of the LSD and amphetamine the subject of those two offences, and that this was indicated by her Honour’s assessment of the offence in Count 1 as "at about the mid range in terms of objective seriousness or perhaps a little below". Counsel submitted that given that all the factors in the assessment of objective seriousness were common to each supply offence there was not a basis to differentiate between the offences in the way her Honour did and conclude that the offending in Counts 2 and 3 exceeded the middle of the range of objective seriousness, and that the only apparent reason for the different findings was that her Honour gave determinative significance to the quantity of drugs the subject of Counts 2 and 3.

2. [78]

   Counsel submitted that her Honour's findings in respect of Counts 2 and 3 were erroneous because they were not open and/or her Honour arrived at those findings by placing undue significance on the weight of the drugs the subject of each offence.

3. [79]

   The common factors which counsel for the Applicant submitted were relevant to the assessment of objective seriousness of each supply offence were: that the quantities of drugs, while significant, were each at the bottom end of the large commercial quantity range, which has no upper limit; that her Honour found that the Applicant's principal or primary motivation for the offences was not profit but a need for acceptance and that the profits were not as large as might have been expected; that her Honour found that the supply enterprise was relatively sophisticated but was a two person backyard operation of narrow compass; and relied to a lesser extent on a limited number of drugs actually finding their way into the community because they were either supplied to police as controlled purchases or found in the possession of the Applicant and his co-offender and deemed to be for the purpose of supply.

4. [80]

   In respect of Count 3 counsel referred to her Honour’s finding that "I accept also that Count 3 is a little above the mid range in terms of objective seriousness, largely because of the quantity involved", and submitted that there were no other factors which justified a finding that the offence was above the mid range of objective seriousness. Counsel submitted there was no logical basis to materially differentiate between the objective criminality of the offences in Counts 1 and 3.

5. [81]

   In respect of Count 2 counsel submitted that her Honour gave undue significance to her finding that the quantity of LSD the Applicant supplied was in excess of 10 times the large commercial quantity, which, as noted above, counsel submitted was not open to her Honour.

6. [82]

   The Crown submitted that the assessment of objective seriousness was within the exercise of her Honour's discretion, that this Court should be slow to intervene unless error was shown, that the offences were serious having regard to the quantities of the drugs, the extent and sophisticated nature of the Applicant’s supply operation in which he used the dark web to offend for his own benefits, financial and psychological, and employed his co-offender, and submitted that her Honour did not err. The Crown submitted that her Honour’s specific references to where on a scale of objective seriousness the supply offences lay, at p. 30 of the Remarks on Sentence, were in the context of her Honour explaining why the standard non-parole periods would not apply and did not affect her Honour’s principal finding that the Commonwealth offences were "around the middle of the range" and "when turning to an assessment of the State offences I make the same findings in relation to objective criminality”.

Consideration

1. [83]

   Her Honour's findings were:

2. [84]

   In Mulato v R [2006] NSWCCA 282 Simpson J said at [46]:

3. [85]

   Spigelman CJ at [37] said:

4. [86]

   I do not consider that her Honour’s statements about the objective seriousness of the offences in Counts 1, 2 and 3 can be limited in the way the Crown contended. Although those findings were mentioned with her Honour’s determination that the standard non-parole period did not apply strictly to each of those offences it is clear that they were her Honour’s findings in terms of the objective seriousness of the three offences. Given that all of the other factors involved in the three offences, including the Applicant's role, the method employed, the degree of sophistication and planning, and the time over which the offences occurred were the same, the only basis on which her Honour could have differentiated the offences in Counts 2 and 3 from the offence in Count 1 was the quantity of the drugs. The quantity of drugs the subject of Count 1, 773g of MDMA, was a little above the 500g threshold of the large commercial quantity, and the quantity of amphetamine the subject of Count 3 was approximately twice the large commercial quantity threshold of 1kg specified for that drug. Those quantities, relative to the large commercial quantity threshold prescribed for each drug, did not permit of a differentiation between Count 1 as "about the mid range in terms of objective seriousness, or perhaps a little below" and Count 3 as "a little above the mid range in terms of objective seriousness, largely because of the quantity involved". The circumstances of the offence in Count 3 do not make it an offence beyond the mid range.

5. [87]

   There was no evidentiary basis on which to calculate the weight of the LSD tabs the subject of Count 2, relative to the large commercial quantity threshold of 2g, and there was not an evidentiary basis for the finding her Honour made that the quantity was over 10 times the threshold. That flawed finding seems to have affected her Honour’s assessment of the offence in Count 2 as "somewhat above the mid range in terms of objective seriousness". Mistaking the facts is one form of House v The King error.

6. [88]

   I am satisfied that the determinations of objective seriousness made by her Honour in respect of the offences in Counts 2 and 3 were not reasonably open to her, that they could not properly be differentiated from the offence in Count 1 to the extent that they were. Her Honour assessed Count 1 as at about the mid range or perhaps a little below. There is some imprecision in that description. The assessment of an offence as in the mid range of seriousness is different from assessing the offence as a little below the mid range. I would assess each of the offences in Counts 2 and 3 as in the mid range of seriousness.

7. [89]

   Ground 3 should be upheld.

8. [90]

   Error having been found in relation to Grounds 1, 2 and 3 it is not necessary to consider Ground 4, the complaint that the sentence was manifestly excessive.

9. [91]

   Error having been found in relation to Grounds 1, 2 and 3 it is necessary to resentence the Applicant: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37.

Resentence

1. [92]

   Having taken into account all the factors involved in the offending, which have been referred to above, I assess the objective seriousness of the supply offences in Counts 2 and 3 as in the mid range of objective seriousness and maintain her Honour’s assessment of the offence in Count 1. I adopt the sentencing Judge’s assessment of the importation offences, although the Applicant's mental health conditions mean that general deterrence should be given less weight than would usually be warranted in the case of offences of commercial drug importations and commercial drug supplies, and I take into account that the Applicant's moral culpability was diminished a little by his mental health conditions.

2. [93]

   I adopt the sentencing Judge's findings about the Applicant's prospects of rehabilitation, including that he had overcome a significant drug addiction while in custody and, as her Honour did, I take into account his lack of prior convictions. I also adopt her Honour’s finding that in the circumstances the need for specific deterrence is not great. The evidence showed that the Applicant had developed some insight, while in custody, into the effects of his supplying drugs into the community.

3. [94]

   Although two of the supply offences have been assessed as in the mid range of objective seriousness, the standard non-parole periods do not have direct application because of the Applicant’s pleas of guilty and the impacts of his mental health conditions.

4. [95]

   I agree with the sentencing Judge that in the circumstances of this case the Form 1 matters should have little impact on the sentences indicated for the individual offences and the total sentence.

5. [96]

   The Applicant read the Affidavit of Lindsay Kate Stankovic on the usual basis. It confirmed that the Applicant’s experience of custody has been more positive than he anticipated in that he has continued to work and is well regarded in that capacity in custody, he has participated in social activities and programs, and was a representative in a symposium considering the treatment of prisoners. The material indicated that the Applicant has further progressed his rehabilitation while in custody since his being sentenced.

6. [97]

   In considering the degree of notional accumulation of the indicative sentences for each offence and the degree of accumulation of the aggregate sentences for the Commonwealth and State offences I take into account that the importation and supply offences were all part of the same enterprise operated by the Applicant over the same time period. Some of the imported drugs were seized by police from post offices before they reached the Applicant, so the drugs involved in the importation offences and the drugs involved in the supply offences, both actual and deemed supplies, did not totally overlap. When one steps back and looks at the overall criminality the sentences should involve a significant degree of concurrency.

7. [98]

   The 50% discount the Applicant received in the District Court must be applied to the sentences indicated for the individual offences.

8. [99]

   I would grant leave to appeal and allow the appeal.

9. [100]

   For the individual offences, after applying the 50% discount, I would indicate the following sentences:

10. [101]

    For the Commonwealth importation offences (sequences 1, 2 and 3), I would impose an aggregate sentence of 7 years imprisonment with a non-parole period of 3 years imprisonment to date from 14 February 2019, the day the Applicant went into custody.

11. [102]

    For the supply offences against New South Wales law (Counts 1, 2 and 3) I would impose an aggregate sentence of 7 years imprisonment and finding special circumstances in the notional accumulation of sentences and the need for the Applicant to have a longer period on parole to assist his continued rehabilitation, a non-parole period of 3 years 6 months imprisonment to date from 14 February 2022.

12. [103]

    The total effective sentence would be 10 years imprisonment with a non-parole period of 6 years 6 months imprisonment to date from 14 February 2019. The non-parole period would expire on 13 August 2025.

13. [104]

    The orders I would propose are:

    1. (1)

       Leave to appeal is granted.

    2. (2)

       Appeal allowed.

    3. (3)

       The aggregate sentences imposed in the District Court on 14 May 2021 are quashed and in lieu thereof: