Testici v R

1. [1]

   STERN JA: I agree with McNaughton J.

2. [2]

   HAMILL J: I agree with the orders proposed by McNaughton J and with her Honour’s reasons. I would only add that, in terms of transparency, there is a distinct advantage in back-dating a sentence to take into account periods of pre-sentence “quasi-custody”. However, as McNaughton J demonstrates by reference to several authorities, there is no obligation on a sentencing Judge to adopt that approach. In the present case, Judge O’Rourke SC was plainly aware of the issue and made it clear that she had considered the period on bail, and the onerous conditions, in determining the appropriate sentence. The case of R v Quinlin [2021] NSWCCA 284, upon which the applicant placed particular reliance, demonstrates that quasi-custody may be established by onerous bail conditions in the nature of home detention or a strict curfew, and that one way of recognising this is by back-dating the sentence by a stated proportion of the period during which an offender was subject to such conditions. However, the back-date afforded to the respondent to that prosecution appeal was affected by his isolation from his family and mental health issues, and Price J observed at [99] that the back-date of six months “might be regarded as generous”.

3. [3]

   McNAUGHTON J: The applicant, Oktay Testici, is a 46 year old man who seeks leave to appeal against the sentence imposed upon him on 19 March 2024 at the Downing Centre District Court by her Honour Judge O’Rourke SC (“the sentencing judge”). He was sentenced, having pleaded guilty, for offences committed in 2021, being one count of supply commercial quantity of prohibited drug, one count of possess prohibited weapon, and one count of supply indictable quantity of prohibited drug. Additional matters were taken into account on a Form 1.

4. [4]

   The applicant received an aggregate sentence of 3 years and 2 months’ imprisonment, with a non-parole period of 20 months commencing on 10 March 2024. The applicant will be eligible for parole on 9 November 2025, and the sentence will expire on 9 May 2027.

5. [5]

   The applicant relies on two grounds of appeal:

6. [6]

   The applicant entered pleas of guilty to the offences at the Downing Centre Local Court on 24 October 2023, entitling him to a 25% discount (s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”)). In relation to the supply indictable quantity of prohibited drug offence, a further three matters were taken into account on a Form 1, namely: possess ammunition without holding a licence, permit or authority; deal with property reasonably suspected of being the proceeds of crime that is less than $100,000; and supply prohibited drug.

7. [7]

   The following table shows the offences, the Form 1 matters, maximum penalties, standard non-parole periods (SNPP) (if any), and the indicative sentences.

Facts of the offending

1. [8]

   The following summary of agreed facts is based on the Agreed Statement of Facts tendered during the sentence proceedings, together with the Crown’s supplementary submissions setting out the criminality involved in the offences (further modified in oral submissions) which were accepted by the applicant.

2. [9]

   In October 2018, the Australian Federal Police commenced Operation Ironside in relation to an encrypted communication network, AN0M, used by organised criminal groups. This encrypted communication system offered users privately encrypted communications and secure storage of data on mobile phones (although, unknown to the users, it was not secure from the police).

3. [10]

   The applicant and his co-accused both used AN0M to communicate with each other. The applicant’s username on the platform was “write wild” with a device handle name “pasa”. The co-accused’s username was “downbrush” with a device handle name “connect”.

4. [11]

   On 3 May 2021, the co-accused messaged the applicant:

5. [12]

   The applicant replied:

6. [13]

   The co-accused responded:

7. [14]

   Between 3 to 24 May 2021, the applicant and his co-accused conducted extended discussion on drug use, drug supply, testing drug products, and monies owed for drugs supplied.

8. [15]

   On 28 May 2021, the co-accused asked the applicant:

9. [16]

   By this message, the co-accused offered to supply methylamphetamine to the applicant in quantities of ounces.

10. [17]

    The applicant replied:

11. [18]

    On 31 May 2021, the applicant and his co-accused had a lengthy conversation via the AN0M devices during which the co-accused asked the applicant if his mate needed methylamphetamine. The co-accused explained that he needed to pay a bill and required $15,000. He had $250,000 out on loan to others but they were lagging in their repayments. The applicant explained he did not have $15,000 to loan but would have $1,500 soon that he could lend him. The applicant told the co-offender that he would check whether someone from Smithfield wanted methylamphetamine. The co-accused then sent the applicant a photo of the methylamphetamine.

12. [19]

    The GPS tracking data from the AN0M platform shows that the user of the co-accused’s account was located at a residential address in Fairfield Heights where the co-accused lived. The messages continued.

13. [20]

    The co-accused explained he was getting 900 grams of methylamphetamine. The applicant stated he had checked in with the person from Smithfield and he was asking for methylamphetamine, but they would need to provide a sample of it for him to make a deal. He also stated that he had $1,600 for the co-accused to go towards the $15,000 that the co-accused needed. The co-accused asked to drop off a kilogram of methylamphetamine to the applicant’s home. The applicant explained that he had the drugs hidden in his room because his sister was home and using the garage.

14. [21]

    It was noted by the sentencing judge, in accordance with the submissions from the Crown, that the fact the co-accused had access to a larger amount of methylamphetamine was not a matter that the Crown attributed to the applicant, and had not been taken into account in the sentence. The applicant was simply aware that the co-accused had access to larger amounts of the drug.

15. [22]

    The following day, on 1 June 2021, the applicant told the co-accused that his family had vacated the garage, and the co-accused advised him that he would have a kilogram of methylamphetamine soon. Half an hour later, the co-accused advised that he had picked up the methylamphetamine and was coming to the applicant’s home and would bring a sample of it. The applicant met the co-accused outside the front of the home for a period of four minutes. Later that night, the co-accused asked if the applicant went past Smithfield, and the applicant replied he would be going there that night. Later that night, the applicant told the co-accused that he had given the sample to the person in Smithfield, and he would know by early the next evening if that person wanted five ounces of methylamphetamine.

16. [23]

    The co-accused responded that he had finished bagging up the methylamphetamine and asked the applicant to hide it at his house. He said he had 27 ounces and 23 grams left. The applicant replied that he needed to think of a good place to hide it. The sentencing judge again acknowledged that the Crown relied upon that amount simply to show that the applicant was aware of the quantity which the co-accused possessed.

17. [24]

    On 2 June 2021, the applicant messaged the co-accused to say that the person from Smithfield wanted to take five ounces of the methylamphetamine, but that he advised that person to take one at first, with a plan that in the future he would be provided with 5 to 10 ounces.

18. [25]

    On 3 June 2021, the co-accused advised the applicant that the methylamphetamine was “moving” and that he only had 24 ounces left. The applicant asked the co-accused to bring some to him if he could. The applicant advised the co-accused that the person from Smithfield would take five ounces of methylamphetamine and he asked him for advice on how much he should charge. The co-accused advised him to charge $3,000. The applicant gave evidence before the sentencing judge that he was to receive $200 per ounce. This was not challenged by the Crown.

19. [26]

    The applicant explained that the man from Smithfield to whom he had provided a sample liked the methylamphetamine. The co-accused advised that he knew the methylamphetamine was good because he had sold a lot of it and people were telling him it was good. The applicant said that he would return to Smithfield to see if the price would be accepted and asked the co-accused to bring him the methylamphetamine. They then discussed the sale price.

20. [27]

    Later on 3 June 2021, at 3:33pm, the applicant messaged the co-accused to bring him 10 ounces of methylamphetamine. The applicant explained that he had not been to Smithfield to confirm how much of the drugs that person [1] wanted, but that the applicant would hold the drugs at his home. The co-accused said he would be there in five minutes, and he then provided 10 ounces of methylamphetamine to the applicant.

21. [28]

    Five days later, on 8 June 2021, police executed a search warrant at the applicant’s home. In a granny flat separate from the residence, they found 249 grams of methylamphetamine with a purity of 80% in nine knotted plastic freezer bags. These were the leftovers from the 10 ounces (the equivalent of approximately 284 grams, being the amount in Sequence 6) given to the applicant by the co-offender five days earlier for the purpose of supplying it to others, including the person in Smithfield. The AN0M messages prior to the delivery of the drugs on 3 June 2021 established the manner in which the applicant came to be in possession of that amount of methylamphetamine for the purpose of supply.

22. [29]

    The remaining drugs also found in the granny flat during the course of the execution of the search warrant were 83.25 grams of cocaine located inside a grey toiletry bag (Sequence 4, supply indictable quantity prohibited drug); and 12.73 grams of 3,4-methylenedioxymethamphetamine (Sequence 8 (Form 1), supply indictable quantity prohibited drug). These charges were formulated on the basis of deemed supply.

23. [30]

    Items located in the applicant’s bedroom within the main home and seized during the execution of the search warrant were three mobile phones (not encrypted); a box for a “google pixel” 4G mobile phone (from a likely encrypted device); and a small resealable bag containing white powder and a resealable plastic bag containing 14 cannabis seeds located in a lockable cash box at the top of the wardrobe. The applicant provided police with the key used to unlock this box. Also located were knuckle dusters (Sequence 1, possess weapon without license or permit); a metal pole; steroids; 2 Seroquel tablets; 1 Xanax tablet; 18 Valium tablets and 2 suboxone films.

24. [31]

    As to the knuckle dusters, the applicant told police that he had found them years ago and that he had them for years. He agreed they were located in his bedroom along with the metal pole and he told police he had the pole because he was previously assaulted at his house.

25. [32]

    Also in the granny flat, the police found the following items: $2,500 cash in Australian currency (Sequence 5 (Form 1), deal with property suspected proceeds of crime); plastic bags of various sizes; 2 sets of scales, both with white residue on the weighing surface, and a .9mm ammunition round (Sequence 2 (Form 1), possess ammunition without licence or permit).

26. [33]

    When asked about the granny flat, the applicant stated he “used it to workout in”. In respect of the methylamphetamine, police asked what he could tell them about the nine bags of what appeared to be a prohibited drug. The applicant replied “yeah, it is… yeah”, and when asked “how do you know that” the applicant replied “Yeah… cause it was given to me as it is.” He also told police he placed the drugs inside the drawer and he believed it to be ice or methamphetamine. He confirmed he owned the resealable plastic bags and the scales, and that he thought the cash totalled $2,600. He told police that the drugs inside the toiletry bag were cocaine.

27. [34]

    The applicant was arrested. He declined to be formally interviewed but consented to a forensic procedure.

Sentence proceedings

1. [35]

   The sentence proceedings took place before the sentencing judge on 1 March 2024, with further short evidence and submissions on 19 March 2024 prior to the sentence being delivered.

2. [36]

   On 1 March 2024, the applicant adhered to his pleas of guilty and acknowledged his guilt in relation to the Form 1 offences. The Crown tendered, without objection, the Agreed Facts, the applicant’s criminal, and custodial history together with documents including the Notice of Committal, the Court Attendance Notices, the s 166 Certificate and the Form 1. The Crown also tendered a Sentencing Assessment Report.

3. [37]

   The applicant tendered a psychological report by Ms Susan Hawil, psychologist, dated 7 February 2024, together with two addendums to that report dated 20 February 2024 and 26 February 2024.

4. [38]

   The applicant’s barrister also called oral evidence from the applicant, and from two friends of the applicant, Mr Rafael Rueda, and Mr Andres Tinoco.

5. [39]

   Both parties relied upon written submissions. The matter was adjourned for sentence to 3:00pm on 15 March 2024.

6. [40]

   On 14 March 2024, an email was sent to the parties on behalf of the sentencing judge in the following terms:

7. [41]

   In response to this email, the Crown supplied supplementary written submissions on 15 March 2024. It can be inferred that the matter was further adjourned for sentence to 19 March 2024.

8. [42]

   On 19 March 2024 at 8:58am, the applicant’s barrister emailed the Court agreeing that the criminality of the offences as described in the Crown’s supplementary submissions was correct. The email also advised that the applicant’s barrister would be seeking to recall the applicant very briefly in relation to one matter raised in those submissions by way of clarification only.

9. [43]

   I now deal with the evidence and submissions on sentence in more detail.

10. [44]

    The applicant’s criminal history only showed a course of minor offending between 1998 and 2001, being possess prohibited drug (dismissed without conviction) in 1998, driving offences in 1998 and 1999, a drug offence and a minor property offence in 1999, an offence of take and drive conveyance in 2000, and a possess prohibited drug offence in 2001. The applicant’s custodial history confirmed that he had been released to bail on 16 June 2021 and that the period prior to release had been his first time in custody.

11. [45]

    The report was prepared by Mr Sean Too from the Fairfield Community Corrections Office and was based on material including interviews with the applicant, members of his family, and contact with the applicant’s psychologist. Mr Too noted that the applicant resided in stable accommodation with his parents and sister who were pro social influences and supported him despite his offending. The applicant reported maintaining employment for 14 years in the transport industry until 2020 when he became his father’s full-time carer.

12. [46]

    Mr Too recorded that these offences were the applicant’s first relating to supplying prohibited drugs, and that they were organised. The applicant became involved at the instigation of a friend with whom he had recommenced a relationship following a chance meeting in the local area. The applicant’s illicit substance dependency began five years earlier as recreational use and escalated to a daily use of cannabis and regular cocaine use. He indicated engaging in drug supply was to partially fund his own drug dependence. He had been abstinent since his arrest.

13. [47]

    He reported suffering from undiagnosed mental health symptoms which were exacerbated by financial stressors at the time of his offending. He had been treated for anxiety and depression by his psychologist and reported an interest in continuing with psychological support.

14. [48]

    The applicant illustrated insight into the impact of his offending and expressed a willingness to undertake appropriate intervention to address his offending behaviour, including receiving ongoing mental health support.

15. [49]

    He was assessed at a low/medium risk of offending.

16. [50]

    The initial report dated 7 February 2024 was based on a two hour assessment conducted on 3 February 2024 by way of audio-visual link, as well as police, medical and psychological documentation.

17. [51]

    Ms Hawil recorded his family background in accordance with the SAR, albeit in more detail. It was noted that the applicant recalled his family experiencing financial hardship as a result of his father’s problematic gambling, reported being exposed to domestic violence perpetrated by his father against his mother during his childhood and adolescence, and that he was subjected to harsh physical discipline.

18. [52]

    The applicant also reported re-establishing a relationship three years ago with a woman he had initially been with at the age of 17 or 18. He described that relationship as good.

19. [53]

    The applicant failed to disclose his history of drug abuse to Ms Hawil and only admitted to two isolated occasions.

20. [54]

    Ms Hawil set out the applicant’s medical history in some detail and noted that he suffers from a number of significant health issues requiring ongoing medical management.

21. [55]

    The applicant reported to Ms Hawil a series of adverse life events which had impacted on his emotional wellbeing, including ceasing work to care for his father, and financial constraints impacting on his ability to address repairs required for the family home.

22. [56]

    Ms Hawil stated that based on her testing, the applicant fell in the low/moderate risk for re-offending, and also noted that he had significant protective factors, including his close and supportive family network, his supportive partner, his ongoing treatment, his caring responsibilities for his father, his empathetic concern for others and his stable accommodation.

23. [57]

    Ms Hawil ultimately opined that the applicant met the criteria for Major Depressive Disorder, with anxious distress, recurrent, severe. She also noted that he had expressed remorse and accepted responsibility for his actions.

24. [58]

    Ms Hawil prepared an addendum to her report on 20 February 2024, which reflected a subsequent consultation with the applicant on 19 February 2024 where he admitted his drug abuse (in accordance with what he had reported to Mr Too for the SAR). He also mentioned sporadic use of Valium from two years prior to his arrest. He reported using drugs as self-medication for his mental health. Ms Hawil opined that the applicant remained in the low/moderate risk for re-offending.

25. [59]

    A further addendum to Ms Hawil’s report was prepared on 26 February 2024, clarifying a typographical error in relation to her original report. Ms Hawil confirmed her initial view, based on the impression management scale, that the applicant’s test results may be overly positive because of wanting to appear publicly acceptable.

26. [60]

    The applicant first gave evidence at the sentence hearing on 1 March 2024. He stated he had initially been dishonest to his psychologist about his drug use, but after telling the truth to the author of the SAR, he decided to contact the psychologist to tell her the truth.

27. [61]

    Elaborating on why he committed the offences, he stated he had a great job, which he loved, for 14 years driving trucks, allocating work and forklift driving, but when his father became ill, he resigned from his job to be his father’s full-time carer. He became depressed and he could not provide for his family as well as he did when he was working. Whilst his sister helped when she could, as he was the oldest child and the man of the house, he took on the role of carer. He stated that he was not thinking straight at the time of the offences and financial problems and drug use got to him. He indicated that there was still a large mortgage on the family home and, when he was in employment, he paid bills, the mortgage and put food on the table. But once he stopped working, he could not provide as he used to.

28. [62]

    After being granted bail, the applicant said he went “cold turkey” and suffered from cold sweats. He stated, “I’ll never touch drugs again.”

29. [63]

    His limitations whilst on bail for two years and eight months meant that he could only leave the house to report to police on Mondays and Fridays and attend medical and legal appointments. Whilst on bail, he looked after his father, taking him for little walks around the yard, and helped his mother with housework. He also looked after their sick dog and tried fixing up their house which needed a lot of work. But the main thing was looking after his father.

30. [64]

    He had been very depressed, getting panic attacks once to twice a week, and his anxiety levels have increased. Seeing the psychologist has assisted him.

31. [65]

    In cross-examination by the Crown, the applicant agreed that he had spent the money from the offences on illicit drugs for his own use, but a “[t]iny bit”, or “[n]ot much at all”, on repairs for the house. He spent “[a] lot” of the money on illicit drugs, smoking pot daily and taking cocaine every second or third day. He started seeing a psychologist after his arrest.

32. [66]

    Mr Rueda had known the applicant for 24 to 25 years, 10 years of which they had worked together. They knew each other well and were good mates. Mr Rueda supported and regularly visited the applicant whilst he was on bail. The applicant became depressed when he had to leave his job to care for his father.

33. [67]

    Prior to the applicant’s arrest, Mr Rueda was not aware the applicant was on drugs. In relation to the period prior to the arrest, Mr Rueda stated that the applicant could not really socialise much when they asked him to come out because “he had to be at home in case anything happened to his dad”. Prior to his arrest, Mr Rueda visited him when he could, maybe once or twice a week, sometimes once every couple of weeks.

34. [68]

    Mr Tinoco had been friends with the applicant for 25 to 30 years and was one of his closest mates. Around eight to ten years prior to the applicant’s arrest (Mr Tinoco was not sure of the dates), the applicant had to quit his job to look after his father, and from then Mr Tinoco noticed a downward spiral happening to him. Mr Tinoco also said that he was in a position to offer the applicant work.

35. [69]

    In cross-examination, he agreed that the applicant may have quit his job only four years ago. He also had noticed that there were days when the applicant was “on something”, and that he noticed he had a drug problem just before the coronavirus pandemic.

36. [70]

    The Crown’s written submissions on sentence set out the relevant sentencing principles. The Crown pointed to one aggravating factor pursuant to s 21A(2) of the Sentencing Act: that the offence was part of a planned or organised criminal activity (s 21A(2)(n)). The Crown noted the use of AN0M, and also that the conduct involved “mercantile-like negotiations as to the financing of bulk drug purchases for the purpose of on-selling the drug”. The Crown also made submissions in relation to the objective seriousness of the offending.

37. [71]

    The Crown urged the Court to treat the untested matters in the psychological report with appropriate circumspection given the applicant’s high score on the impression management scale (which measures the category of social desirability known as faking or lying). The Crown also pointed to the applicant’s changing account as to his drug use which gave further reasons to doubt his reliability. Further, the Crown contended that the applicant’s history of drug addiction should be considered cautiously in the circumstances of commercial drug supply citing Dang v R [2013] NSWCCA 246 at [30].

38. [72]

    As to the issue of an appropriate disposition, the Crown contended that the only appropriate penalty was one of imprisonment and that “[t]he Court should backdate the sentence to commence 9 days prior to the date of sentencing, to take into account pre-sentence custody”.

39. [73]

    The applicant’s written submissions accepted the Crown had correctly identified the relevant legal principles. The written submissions under the heading “ONEROUS BAIL CONDITIONS” read as follows:

40. [74]

    The applicant’s submissions also contended that the applicant had very good prospects of rehabilitation. Further, the applicant submitted that his mental health at the time of the offending had relevance to sentencing by reducing the weight required to be given to general and specific deterrence, and that it would make any custodial sentence more onerous. It was also submitted that the Court should make a finding of special circumstances.

41. [75]

    On 1 March 2024, Mr Peluso addressed the Court on behalf of the applicant. He relied upon his written submissions. In oral submissions, he stated immediately that he was “pressing the submission about the very lengthy house arrest situation” and that it was “a matter that can be taken into account”.

42. [76]

    Amongst other matters, Mr Peluso also addressed the applicant’s good work ethic, that his life went down once he gave up full-time work, and that he failed to deal appropriately with his depression. He submitted that the Court should consider imposing an Intensive Correction Order. He urged the Court to “give him a significant benefit for that very long time spent in quasi-custody”, noting too that deterrence was “not really needed”. He submitted that if the Court imposed “an onerous full-time sentence on him, it may really undo what is already a path of rehabilitation”.

43. [77]

    The Crown relied upon their written submissions. Relevantly, as to the issue of “quasi-custody” the Crown stated:

44. [78]

    There was a discussion that the authorities discussed a discount of up to 50%. Mr Peluso offered to provide an authority, and the sentencing judge then stated, “that’s usually reserved for people that have put themselves into residential rehabilitation for a year”.

45. [79]

    The Crown then (correctly) submitted that the matter was ultimately a matter within the sentencing judge’s discretion. And her Honour then observed:

46. [80]

    The Crown then addressed briefly on other matters before the matter was adjourned for sentence.

47. [81]

    The applicant gave further evidence on 19 March 2024, immediately before the sentencing judge delivered her decision.

48. [82]

    Following that short evidence (which is not presently relevant) Mr Peluso, for the applicant, again addressed the issue of bail. The transcript reads as follows:

Remarks on Sentence

1. [83]

   The sentencing judge began by setting out the offences, their maximum penalties, and the applicant’s entitlement to a 25% discount. Her Honour also noted the Form 1 offences and referred to the case law setting out the relevant legal principles. Her Honour then noted that the applicant had spent nine days on remand before being granted strict conditional bail.

2. [84]

   Her Honour set out the facts – in essentially the same terms as set out from [9] above.

3. [85]

   Her Honour noted that all the offences were objectively serious.

4. [86]

   As to the sequence 6 offence, her Honour noted, amongst other things, the commercial quantity of methylamphetamine was already packaged in nine, one ounce bags, ready to supply to others. There were other indicia of supply such as phones, scales, and resealable bags. Her Honour found that the commission of the offence was no doubt motivated by money. Her Honour found, in accordance with the submissions of both parties, that the objective seriousness fell just below mid-range, noting the amount of the drug, its purity and the AN0M communications between him and the co-accused facilitating the sale of drugs from the upline supplier (the co-accused) to his own customers.

5. [87]

   As to sequences 1 and 4, her Honour found the offending was within the low range of objective seriousness.

6. [88]

   As to the personal circumstances of the applicant, the sentencing judge noted the matters referred in the reports tendered on his behalf as well as the SAR and the evidence of the character witnesses, including his physical health issues.

7. [89]

   Her Honour recorded that the applicant told the psychologist he needed finances to support his escalating substance use problems and to provide financial assistance to his family for essential home repairs. In relation to the SAR, her Honour noted that although he did not dispute the police facts, he justified his actions to the author by claiming to have insufficient income from Centrelink. Her Honour noted that he minimised his offences in relation to the possession of prohibited items claiming they were gifts he had had for years.

8. [90]

   Her Honour noted the psychologist’s assessment that the applicant had demonstrated insight into the impact of his offending, and that he was assessed by the psychologist as having a low moderate risk of reoffending, and by the author of the SAR as having a low to medium risk of reoffending.

9. [91]

   The sentencing judge then stated:

10. [92]

    Her Honour then continued by noting that it was well established that the commercial trafficking of prohibited drugs is regarded by the courts as a very serious offence, referring to the maximum penalties of the offences before her. Her Honour stated:

11. [93]

    Her Honour returned to the issue of general deterrence later in her remarks.

12. [94]

    Her Honour noted the provisions of s 21A of the Sentencing Act. Her Honour also noted his prior history, finding that although it was not an aggravating feature, it would disentitle him to the significant degree of leniency he would get if he had no criminal history. Her Honour found the applicant was genuinely remorseful.

13. [95]

    As to the issue of his bail conditions, the sentencing judge stated:

14. [96]

    Her Honour continued, in relation to the applicant’s prospects of rehabilitation:

15. [97]

    The sentencing judge noted the applicant’s claim to be addicted to illicit drugs which, whilst relevant to the sentencing exercise, was not a mitigating factor. Her Honour also noted the applicant had some mental health issues but commented that these charges related to drug supply, and it was “difficult to ascertain any causal link to his said mental health to these particular charges and what they require to be committed and his declared motivation for them”. The sentencing judge found there were psychological issues requiring intervention and treatment, but they were not causally linked to his offending, and they did not moderate the need for general deterrence, albeit her Honour noted she had “taken it into account in another way”.

16. [98]

    As to his physical health, the sentencing judge assumed that Justice Health had the means and capacity to deal with those issues. Her Honour, however, did take into account some ongoing restrictions within the gaol system due to COVID-19.

17. [99]

    Her Honour found special circumstances due to the applicant’s physical and mental health issues. It can be noted that the non-parole period imposed by her Honour was reduced to approximately 52% of the total aggregate term of imprisonment (compared to the statutory ratio of 75%).

The appeal before this Court

1. [100]

   It is convenient to deal with these sub-grounds in reverse order. It can be noted that Ground 1(b) was initially framed in slightly different terms, but was refined during the course of the hearing, and leave was granted to amend Ground 1(b).

2. [101]

   As to the contended failure to backdate, the applicant correctly cited the relevant legal principles, submitting that onerous bail conditions may be taken into account at sentence as quasi-custody but there was no obligation to do so; it being a discretionary matter which depends on the circumstances of each case. An offender bears the onus of establishing whether bail conditions amount to quasi-custody on the balance of probabilities. In written submissions, examples were provided of cases where pre-sentence bail did and did not amount to quasi-custody.

3. [102]

   In this case, the applicant was granted bail on 15 June 2021 and was subject (relevantly) to a home detention condition upon his release to bail on 16 June 2021 until sentenced on 19 March 2024 with the only exceptions being to report to police or to attend medical or legal appointments. It was conceded by the applicant that the sentencing judge acknowledged the onerous bail conditions amounted to quasi-custody.

4. [103]

   Taken together, the applicant submitted, the applicant was:

5. [104]

   I note that the percentage reduction submission was abandoned during the course of the appeal.

6. [105]

   It was further submitted that the impact pre-sentence bail had on the applicant was set out in sworn oral evidence that went unchallenged, and that those impacts were as significant as, or more significant than, those faced by the offenders in each of the cases to which the applicant referred.

7. [106]

   In response, the Crown reiterated that there was no issue before the sentencing judge that the applicant’s bail conditions amounted to quasi-custody. It was a matter for her Honour as to how she reflected that finding. No error had been shown in the manner in which the sentencing judge dealt with the issue of the onerous bail conditions, and that Ground 1(b) should be dismissed.

8. [107]

   There is no dispute between the parties as to the relevant legal principles relating to the manner in which a sentencing judge may take into account onerous bail conditions. These principles are conveniently set out by Hoeben CJ at CL in Small v R [2018] NSWCCA 290 at [35]–[39]. Unlike the present case, Small involved an applicant being held in a residential rehabilitation centre while on bail, in conditions found to amount to quasi-custody. His Honour stated:

9. [108]

   Four important principles emerge:

   1. (1)

      Whether or not conditions of bail (be they residential rehabilitation conditions or otherwise) amount to quasi-custody is a question of fact.

   2. (2)

      It is for the sentencing judge to determine, as a matter of discretion, the manner in which quasi-custody should be taken into account.

   3. (3)

      There is no mandatory requirement to accommodate quasi-custody by way of backdating, nor to provide reasons for not doing so.

   4. (4)

      Where there is an evidentiary foundation for it being taken into account, a sentencing judge may be obliged to have regard to quasi-custody, even when not specifically asked.

10. [109]

    Useful expositions of the principles can also be found in La v R [2021] NSWCCA 136 at [43] (per Garling J, Basten JA and Price J agreeing). It is also worth noting the observation of Basten JA in La at [1]:

11. [110]

    As observed by Wright J in Kljaic v R [2023] NSWCCA 225 at [29], situations which have been found to amount to quasi-custody have included participation in residential rehabilitation where the person was subject to discipline and restrictions (R v Eastway (CCA, unreported, 19 May 1992) (Gleeson CJ, Hunt CJ at CL and Mathews J) referred to in R v Campbell [1999] NSWCCA 76 at [24] (Kirby J)); and being on bail but subject to particularly onerous conditions such as the offender being required to live in another city, rather than their home city, report daily to police, obey reasonable directions of police and submit to supervision to enable the offender to give further assistance to authorities: R v Cartwright (1989) 17 NSWLR 243 at 258 (Hunt and Badgery-Parker JJ, Mahoney JA agreeing).

12. [111]

    The applicant pointed to no authority which obliged the sentencing judge to backdate the sentence because of onerous bail conditions.

13. [112]

    Before the sentencing judge, the applicant referred to the issue of “quasi-custody” a number of times. On 1 March 2024, he did this in written submissions (above at [73]) and in oral submissions (above at [75]). The Crown conceded some allowance should be made (above at [77]) (albeit misunderstood that there was a direct submission on behalf of the applicant that there should be a discount representing 75% of the time spent on bail). Nevertheless, on any view, her Honour clearly appreciated that a significant benefit was being sought for pre-sentence quasi-custody. When the matter returned to court for the imposition of the sentence, Mr Peluso again referred to the issue and her Honour clearly stated (immediately prior to the delivery of her remarks on sentence) that she had taken it into account.

14. [113]

    It is important to note, however, that Mr Peluso did not, before the sentencing judge, advocate that the recognition of the onerous bail conditions had to be made only by way of backdating. This was first raised on appeal. Whilst Mr Peluso referred the sentencing judge to a number of cases, including those which included backdating, he did not submit to the sentencing judge that the only proper way to take the onerous bail conditions into account was by way of backdating. As noted above at [75], Mr Peluso said he was “pressing the submission about the very lengthy house arrest situation” and that it was “a matter that can be taken into account”; and at [76], he urged the Court to give the applicant “a significant benefit”. Further, he urged that the matter should be given “some consideration in sentence” (at [82]).

15. [114]

    As affirmed most recently in Hemsworth v R [2025] NSWCCA 2 at [66], this Court does not lightly entertain new arguments raised for the first time on appeal, but which could have been put to the sentencing judge at first instance, citing the familiar authority Zreika v R [2012] NSWCCA 44 at [80]–[83].

16. [115]

    In any event, even if the backdating submission had been made below, her Honour’s approach was open to her. That the sentencing judge did not backdate the sentence but rather accounted for the pre-sentence quasi-custody as part of the exercise of instinctive synthesis was properly a matter within her discretion. It is clear that the sentencing judge acknowledged the onerous bail conditions and clearly indicated, three times, that she had taken that issue into account in the exercise of instinctive synthesis.

17. [116]

    In my view, in relation to Ground 1(b), no error has been shown.

18. [117]

    The applicant made brief written submissions in relation to this point, citing Porter v R [2019] NSWCCA 117, that given the nature of the conditions and length of time of bail, more detailed reasons explaining why the sentence was not backdated was required. In Porter, RA Hulme J stated at [67]:

19. [118]

    In oral submissions, the applicant referred the Court to Pauls v R [2024] NSWCCA 123 at [42] and [44]. In that case, Mitchelmore JA (Kirk JA and Davies J agreeing) found error on the basis that the sentencing judge failed to make any findings in relation to issues of remorse, likelihood of re-offending and prospects of re-offending, about which, on the evidence, competing inferences could be drawn.

20. [119]

    Before this Court, the applicant conceded that the remarks on sentence raised the issue of pre-sentence quasi-custody, but contended that was not sufficient. Rather, reasons should have been provided as to how that quasi-custody was dealt with given “[t]he manner in which it should be taken into account was put squarely in issue by defence counsel”, and the “importance” of it in the proceedings.

21. [120]

    The Crown contended that the reasons of the sentencing judge in respect of the allowance for quasi-custody were adequate when viewed in the context of the way the issue was raised below, noting that there was no contest or issue between the parties as to some allowanced being made, and there was no submission as to the manner in which any allowance should be made.

22. [121]

    As stated in Ming v Director of Public Prosecutions (2022) 109 NSWLR 604; [2022] NSWCA 209 at [43] (per Kirk JA, White and Mitchelmore JJA agreeing):

23. [122]

    As observed by the Crown, there was no contest between the parties as to a finding of pre-sentence quasi-custody, nor as to the manner in which it should be reflected in the final sentence. Her Honour made it clear that she was taking the matter into account. In light of this, and in light of the observation by Hoeben CJ at CL in Small (above at [107]) that there is “no mandatory requirement to accommodate quasi-custody by way of backdating, nor to provide reasons for not doing so”, the applicant has failed to make good Ground 1(a).

24. [123]

    Ground 1 therefore fails.

25. [124]

    The applicant submitted that the combination of the applicant’s pre-sentence custody; the impact of delay; his mental health which reduced the need for specific and general deterrence; and the fact that he was found to be genuinely remorseful, with reasonable prospects of rehabilitation, means that even allowing for the objective seriousness of the offending, the sentence imposed was manifestly excessive. It was contended that those factors combined to render the sentence imposed, either by penalty type or length, such that there has been a clear “misapplication of principle”, or one that is “unreasonable or plainly unjust”.

26. [125]

    After setting out the relevant authorities, and dealing with each contention raised by the applicant, the Crown submitted that the sentencing judge did not err, and that the sentence imposed was not only not manifestly excessive, but that it was at the lower end of the appropriate sentencing range.

27. [126]

    The principles applicable to a complaint that a sentence is manifestly excessive are well known and were collected by RA Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

28. [127]

    The principles expressed in Obeid were cited with approval by Bell CJ (Stern JA and Button J agreeing) in Astill v R [2024] NSWCCA 118 at [77]. At [78], the Chief Justice also cited with approval the further guidance provided by RA Hulme J in JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39]–[40]:

29. [128]

    In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42], after summarising the principles applicable to determining whether a sentence is manifestly excessive, Bell P (Gleeson and McCallum JJA agreeing) continued:

30. [129]

    I will now consider each aspect of the applicant’s argument in turn, noting that he relied on these aspects in combination to show that, even allowing for the objective seriousness of the offending, the sentence imposed was manifestly excessive.

31. [130]

    The applicant pointed in particular to the length of time, the strict conditions, and the applicant’s experience of house arrest which, together with other matters, showed the sentence was manifestly excessive.

32. [131]

    As discussed above, how this matter was to be taken into account was a discretionary matter for the sentencing judge. The sentencing judge took this issue into account in a manner open to her. Furthermore, it can be noted that there were aspects of the home detention which ameliorated the hardship associated with the length of time and the strict conditions. The applicant’s bail conditions allowed him to live in his own home, look after his ailing father (as he had done prior to his arrest), have friends visit regularly and recommence a relationship with a woman (as set out above at [52]), a relationship which he described as “good”. The manner in which her Honour dealt with this issue did not contribute to, nor result in, a manifestly excessive sentence.

33. [132]

    The applicant further submits that too much weight was given to general and specific deterrence, when considered in light of the applicant’s mental health conditions.

34. [133]

    As stated by Simpson AJA in Apulu v R [2022] NSWCCA 244 at [117]–[119]:

35. [134]

    In finding that she was not satisfied that the applicant was an inappropriate vehicle for general deterrence, the sentencing judge took into account her finding of the lack of a causal connection between the offending conduct and the applicant’s mental health conditions, the seriousness of the offending involving drug supply as emphasised by this Court on many occasions, and his financial motives for offending, including his need to fund his drug abuse.

36. [135]

    Her Honour indicated that she had taken the applicant’s mental health into account in another way, which was clearly a reference to the finding of special circumstances. It can be remembered that alteration of the statutory ratio on the basis of special circumstances was generous and resulted in a non-parole period amounting to 52% of the head sentence.

37. [136]

    In relation to specific deterrence, her Honour noted that the applicant had demonstrated some insight into his offending and its effect. The applicant has failed to establish that the sentencing judge was not entitled to find there was still a need for “some specific deterrence” to be reflected in the sentence (see [92] above).

38. [137]

    In essence, the applicant’s complaints about how general and specific deterrence were dealt with are essentially complaints about weight. The approach taken by the sentencing judge was open to her.

39. [138]

    No argument relating to delay was raised before the sentencing judge, but in his written submissions before this Court, the applicant nominated “delay” as one of the matters helping to show why the sentence was manifestly excessive.

40. [139]

    As correctly observed by the Crown, an offender bears the onus of establishing delay as a mitigating factor on the balance of probabilities. Principles relevant to delay on sentence were set out in Elchiekh v R [2016] NSWCCA 225 at [56].

41. [140]

    The observations made in relation to Zreika above at [114] also relate to this submission. In any event, as noted by the Crown, the applicant has not provided, not pointed to, any evidence as to the cause or significance of any delay such as would mitigate his sentence. There is no evidence that he was left in uncertain suspense, nor that the delay could properly underpin a submission that the offending was “stale” by the time he was sentenced. As to demonstrated progress towards rehabilitation, this factor was taken into account in the applicant’s favour by the sentencing judge as set out at [96] above.

42. [141]

    As noted in Issac v R (2024) 384 FLR 431; [2024] NSWCCA 2 at [76]:

43. [142]

    The aggregate sentence of imprisonment of 3 years and 2 months with a non-parole period of 1 year and 8 months must be viewed in light of a number of considerations. The applicant supplied two different drugs: methylamphetamine in a commercial quantity, and cocaine in an indictable quantity. He was motivated by financial gain. The maximum penalties carried by these offences were significant: 20 years’ and 15 years’ imprisonment respectively. The supply commercial quantity offence also carried a standard non-parole period of 10 years. He also faced a weapons offence together with Form 1 offences.

44. [143]

    The applicant was working with another supplier. The methylamphetamine was of a high purity and it can be readily inferred that he was working above the level of a street dealer.

45. [144]

    Although the applicant was suffering from mental health difficulties, those difficulties were taken into account by the finding of special circumstances and altering the statutory ratio to a significant extent. This was an approach properly open to her Honour.

46. [145]

    The sentence imposed by the sentencing judge was clearly within her Honour’s sentencing discretion. The applicant has failed to demonstrate that the sentence was manifestly excessive.

47. [146]

    The applicant has failed to establish Ground 2.

Conclusion

1. [147]

   I propose the following orders.

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.