Koster v R

1. [1]

   ADAMSON JA: I agree with Ball JA.

2. [2]

   BALL JA: Following a trial by jury, the applicant was convicted on two counts of supplying not less than a large commercial quantity of lysergide (LSD) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). The first count concerned the supply between 16 and 20 November 2019 of 6.9 grams of LSD. The second concerned the supply between 3 and 6 February 2020 of 9.7 grams of LSD. Both supplies were to a James Calleja, who resupplied the drugs to Ashley, an undercover police officer engaged in a controlled operation against Mr Calleja. Mr Calleja gave evidence against the applicant at trial.

3. [3]

   The maximum custodial sentence for the supply of a large commercial quantity of LSD in contravention of s 25(2) is life imprisonment: s 33(3). The standard non‑parole period is 15 years. In the case of LSD, a “large commercial quantity” is defined to be 2 grams: DMT Act, Sch 1.

4. [4]

   On 5 April 2024, the sentencing judge (Girdham SC DCJ) imposed an aggregate sentence in respect of the two counts of four years and three months imprisonment with a non‑parole period of two years and six months imprisonment. The sentencing judge indicated that if separate sentences had been imposed for each offence she would have imposed a sentence of three years and six months imprisonment with a non‑parole period of two years imprisonment in respect of the first count and a sentence of four years imprisonment with a non‑parole period of two years and three months in respect of the second count.

5. [5]

   The sentencing judge also directed that consistently with a report obtained from Dr Richard Furst, a psychiatrist, that “regular reviews be undertaken with a psychiatrist and mental health nurse working for Justice Health, that the offender requires treatment with medication for his anxiety, depression, panic and PTSD”. The sentencing judge also recommended “Psychological treatment … including cognitive behavioural therapy or similar therapy by a psychologist working for Corrective Services New South Wales” and that the applicant:

Basis of appeal

1. [6]

   The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed by the sentencing judge. The sole ground of appeal is that the sentence is manifestly excessive. It is not in dispute that in order to succeed on that ground, the applicant must establish that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (per Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (per Gleeson CJ, Gummow, Hayne and Callinan JJ). It is not sufficient that this Court might have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] (per Gleeson CJ, Callinan, Gaudron, Gummow, Hayne and McHugh JJ).

Remarks on sentence

1. [7]

   In relation to the objective features of the offences, the sentencing judge accepted that “the objective seriousness of each offence is that each are far less serious as many such offences dealt with in this Court”, that “[t]he weight involved in each count is not great” and that “the supply was not attended with … much sophistication at all”. Essentially, on each occasion Mr Calleja attended the applicant’s home to collect the LSD, apparently after arranging to do so over the telephone. On each occasion, the applicant provided Mr Calleja with three vials containing the LSD. There was no evidence concerning the LSD’s purity. The sentencing judge proceeded “on the commonsense basis that the offender engaged in the conduct for some financial reward”. The evidence is that at least on the first occasion Mr Calleja paid the applicant $800 per vial after he was paid for the drugs by the under-cover police officer.

2. [8]

   The sentencing judge dealt extensively with the subjective elements of the offences. Her Honour pointed out that the applicant was at the time sentence was pronounced 42 years old (he was born in January 1982). He had had a difficult childhood, struggling at times to fit in. He started smoking marijuana at an early age and at the age of 15 tried LSD, MDMA and magic mushrooms. He was an average student who attended high school up until mid‑way through Year 8, when at the age of 15 he left school and home. He returned to studies in his late 20s going on to complete a Bachelor’s degree in audio engineering. Following that, he was heavily involved in the music festival and rave scene which led to an increase in drug use and connections with anti‑social people. More recently, following his arrest in 2020 he removed himself from that environment and worked as a gardener and assisted his partner of nine years, Abbey, with whom he has a five year old son. He also has a step-daughter. Before he was sentenced, he lived together with his family in Wentworth Falls. The applicant’s subjective case was supported by 23 references from family and friends, who gave evidence of the applicant’s good character.

3. [9]

   As a result of his self‑diagnosis with PTSD, the applicant was referred to Dr Furst in connection with his sentencing hearing. Dr Furst concluded that the applicant did suffer from PTSD and alcohol and cannabis use disorder. According to Dr Furst, the PTSD has been the result of the treatment the applicant received while he was held on remand for a period of 14 days following his arrest. The applicant gave evidence that during that time, he was assaulted, threatened with a knife and sexually assaulted by three Aboriginal inmates when he was locked in the same cell as them one night and made to sleep on the concrete floor.

4. [10]

   The applicant did not plead guilty and initially maintained an attitude which suggested that he had no remorse. However, the sentencing judge concluded that “I am satisfied that now he has had the opportunity to reflect, he deeply regrets his involvement not just with Mr Calleja but in the supply of drugs. He clearly was deeply immersed in a culture which normalised drug use and may well have struggled to come to terms with the requirements of the law”.

5. [11]

   The sentencing judge also concluded that the applicant’s risk of reoffending was low. On that issue, her Honour said:

6. [12]

   The sentencing judge referred to the fact that “[p]rior to these matters [the applicant] had minor convictions”, which presumably included a reference to fines in Queensland in 2010 and 2013 for the possession of dangerous drugs and the imposition of a 12-month conditional release order for driving with an illicit drug present in his blood, where in each case no conviction was recorded.

7. [13]

   As the sentencing judge pointed out, the resolution of the matter had been protracted, through no fault of the applicant. During that time, apart from the 14 days he spent on remand, the applicant was on bail on terms which the sentencing judge was prepared to accept “have been stringent, albeit it is not suggested that they have been approaching quasi custody”.

8. [14]

   The sentencing judge also accepted that:

9. [15]

   Taking these matters into account, the sentencing judge concluded that there were “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which justified the imposition of a non‑parole period which was less than the proportion (two-thirds) stipulated in that section.

10. [16]

    The sentencing judge also considered the application of the principle of parity in relation to the sentence imposed on Mr Calleja (seven years and six months’ imprisonment with a non-parole period of four years and six months imprisonment, after a combined discount of 35% for his plea of guilty and future assistance to authorities), although, as the sentencing judge pointed out, there were substantial differences in both the objective and subjective aspects of the offences which made any comparison of limited value.

11. [17]

    Militating against aspects of the applicant’s subjective case were the principles of “denunciation, just punishment, general deterrence and the protection of the community”. In relation to those considerations, the sentencing judge said:

12. [18]

    The sentencing judge concluded that taking account the various matters she had referred to, this was a case where “no other penalty is appropriate than a sentence of imprisonment, the term of which exceeds three years”. Having reached that conclusion, she imposed the sentence referred to earlier.

Consideration

1. [19]

   The gravamen of the applicant’s appeal is that having regard to the fact that each offence fell towards the low end on the scale of objective seriousness and to the applicant’s strong subjective case, any sentence in excess of three years imprisonment was unreasonable or plainly unjust. The applicant’s case is that any sentence should have been for a period of less than three years and an intensive correction order should have been made under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) directing that the sentence be served by way of intensive correction in the community. The court may not make such an order where an aggregate sentence exceeds three years: s 68.

2. [20]

   In my opinion, there is no reasonable prospect that the appeal will succeed, with the result that the application for leave to appeal must be dismissed.

3. [21]

   The applicant does not point to any other cases which might be regarded as comparators and which suggest that the sentence imposed by the sentencing judge was unreasonable or plainly unjust.

4. [22]

   Although the sentencing judge correctly concluded that both offences were at the lower end of objective seriousness, it is important to bear in mind that there were two separate offences, that both offences are classified by the legislature as falling within the class of the most serious offences, carrying as they do a maximum sentence of life imprisonment, and that both offences involved the supply of a quantity of LSD that put them squarely within that class. Any sentence was required to take account of those matters.

5. [23]

   The sentencing judge also correctly recognised that there were strong subjective elements that favoured a more lenient sentence. But again, this is not a case where the subjective elements all pointed in one direction. The applicant had committed drug-related offences, albeit that they were minor in nature. As the sentencing judge remarked, the applicant did not plead guilty and following his conviction “maintained an attitude which suggested he had no remorse”. Only recently, and about four years after the offences, has the applicant accepted responsibility for his conduct.

6. [24]

   Lastly, it is plain that the sentencing judge correctly placed considerable weight on the social harm caused by the supply of drugs to members of the community, who are often vulnerable, and the need for general deterrence of conduct of that type.

7. [25]

   Taking these matters into account, it could not be said that the sentence imposed by the sentencing judge was unreasonable or plainly unjust. It was at the low end of the available range for such offences. The non-parole period was reduced as a proportion of the head sentence from that which is prescribed. Those reductions from the statutory prescriptions fell within a range that adequately took account of the subjective circumstances of the case while paying sufficient regard to the serious nature of the offences and the need for general deterrence.

8. [26]

   Accordingly, the application for leave to appeal should be dismissed.

9. [27]

   FAGAN J: I agree with Ball JA.