Garaty v R

1. [1]

   KIRK JA: I agree with Ierace J.

2. [2]

   WILSON J: I also agree with Ierace J.

3. [3]

   IERACE J: The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against an aggregate sentence that was imposed on her on 15 December 2022 by Fitzsimmons SC DCJ for the following two offences, of which she was convicted at trial:

4. [4]

   The maximum penalties were 10 years imprisonment (and/or 2,000 penalty units) and life imprisonment (and/or 7,500 penalty units) respectively. The applicant received an aggregate term of imprisonment for 8 years and 6 months, commencing on 5 September 2022 and expiring on 4 March 2031, with a non-parole period of 4 years and 6 months, expiring on 4 March 2027. The indicative sentences for counts 1 and 2 were imprisonment for 2 years and 6 months and for 7 years respectively.

5. [5]

   The applicant was tried with Christopher Obiekie (Obiekie), who was convicted of the same two Commonwealth offences and a State drug supply offence, contrary to ss 25(1), 29 of the Drug Misuse and Trafficking Act 1985 (NSW). For the two Commonwealth offences, he received an aggregate sentence of imprisonment for 12 years and 6 months with a non-parole period of 8 years. The indicative sentences were 4 years for the count 1 and 11 years for count 2. For the State offence, he received a sentence of imprisonment for 3 years, which was partially accumulated, so that the total sentence was a sentence of imprisonment for 13 years and 6 months, with a non-parole period of 9 years.

6. [6]

   The applicant has two grounds of appeal:

The facts of the offences

1. [7]

   A document of asserted facts was tendered on sentencing by the Crown, which the applicant accepted to be accurate (the Asserted Facts). They are, relevantly, to the following effect.

2. [8]

   In 2020, the applicant resided in a rented “granny flat” in Bankstown, for which she was sometimes in arrears in her rent. The landlord was Peter Nguyen. The applicant was in a romantic relationship with Obiekie, who lived in boarding house accommodation in Marion Street, Bankstown (the Marion Street premises), although each would occasionally stay at the other’s residence. With respect to that relationship, the Asserted Facts stated:

3. [9]

   By April 2020, the applicant knew that Obiekie had a business importing packages from overseas.

4. [10]

   In August 2020, Obiekie and the applicant imported by airfreight from South Africa an unknown quantity of Methamphetamine (ice) that was concealed within a Volkswagen brand headlight. The importation was discovered when police executed a search warrant on the Marion Street premises, following the importation that gave rise to count 2.

5. [11]

   An Air Waybill that was generated in South Africa on 6 August 2020 named the consignee as Peter Nguyen, at the Marion Street address. That information had been provided by Obiekie. The consignment arrived in Sydney on 8 August 2020. The applicant engaged a customs agent, Trent Powell, to assist in clearing the consignment through customs, and emailed him the Air Waybill and a tax invoice for the headlight. Mr Powell told her that he would need the consignee’s photographic identification to clear the consignment, to which the applicant responded by email that: “I am trying to get a hold of Peter now to get a copy of his ID, however its difficult when he is at work. I will email through his ID as soon as I receive it”. The Asserted Facts state:

6. [12]

   The applicant knew that Mr Nguyen had no involvement in the importation. On 14 August 2020, Mr Powell advised the applicant by email that: “We have cleared this without the ID, please email the ID … Once we receive your payment we will finalise with Customs”.

7. [13]

   The Asserted Facts continued:

8. [14]

   The consignment was delivered to the Marion Street premises at a time between 15 and 17 August 2020. The headlights were found in the Marion Street premises during a search by police on 29 November 2020. A trace swab of the interior cavity of one of the headlights tested positive for the presence of ice. By inference, the jury found that at least one of the headlights was used in August 2020 to conceal and import an unknown quantity of ice. The Asserted Facts state:

9. [15]

   Prior to 11 November 2020, Obiekie arranged to import from South Africa a quantity of ice secreted inside three BMW brand dashboards. An Air Waybill for the dashboards that was generated on that date named the consignee as Mr Nguyen, at the Marion Street address. In about the preceding six weeks, Obiekie and/or the applicant had transferred at least about AU$62,113.04 (in South African Rand) to a person in South Africa, as pre-payments for the importation. The Asserted Facts state:

10. [16]

    The consignment arrived in Sydney on 16 November 2020. The applicant re-engaged Mr Powell to assist in clearing the consignment through customs. The Crown asserted that “this was done with Obiekie’s knowledge, if not at his direction”. On the morning of 18 November, after a 20-minute conversation with Obiekie, the applicant sent an email to Mr Powell, that she had previously sent to Obiekie in draft form, in which she stated:

11. [17]

    Mr Powell replied the same day, attaching an invoice for customs clearance and advising that the consignment was still subject to a border security hold. He and the applicant exchanged emails about the meaning of a border security hold. On 20 November 2020, the applicant emailed Mr Powell advising that the invoice had been paid and asking him to “let [Customs] know I have a very busy weekend ahead of me and could they Hurry it up a little please”. Later that day, she sent him a further email, asking if there was a way that she could “monitor the status in the Customs system”. On 24 November, she asked Mr Powell:

12. [18]

    On the morning of 27 November 2020, Mr Powell advised the applicant that the consignment had cleared customs and was ready for collection from the Matraville depot of Menzies Aviation (Menzies), a cargo handling company. The same day, Australian Border Force officers intercepted the consignment and discovered that each dashboard contained a substance that tested positive for ice. That afternoon, the applicant contacted Menzies and asked if the consignment could be collected. A short time later, she and Obiekie attended Menzies in their car. She was advised by a Menzies staff member that she needed a letter of authority from the consignee. The applicant and Obiekie then left.

13. [19]

    Overnight, the applicant drafted an email that purported to be from Mr Nguyen giving authority to her to collect the assignment. It was checked by Obiekie before she sent it to Menzies, in relation to which the Asserted Facts indicated:

14. [20]

    The following morning, the applicant and Obiekie attended Menzies to collect the assignment and were arrested. The ice was found to weigh 2.418 kg and have a purity of 68.7 per cent, representing a total pure weight of 1.661 kg, which is more than two times the commercial quantity.

15. [21]

    The Asserted Facts stated:

16. [22]

    The applicant was not charged with an offence until 28 October 2021. She was granted bail, which was withdrawn on the date of the jury’s verdict, on 5 September 2022.

The sentence proceedings

1. [23]

   The sentence hearing occurred on 2 December 2022. The sentence was handed down on 15 December 2022, which was nine days after the applicant’s 46th birthday. She had prior convictions for taking a prohibited plant or drug into a place of detention in December 2017, for which she was fined, and a low range PCA in January 2018, for which she was fined and disqualified from driving for 6 months. For an offence of driving with an illicit drug in her blood, committed in July 2019, she received a conditional release order for a period of 6 months, without a conviction being recorded.

2. [24]

   A Sentencing Assessment Report (SAR) and reports by a clinical and forensic psychologist (Dr Emily Kwok) dated 31 October 2022 and a forensic psychiatrist (Dr Richard Furst) dated 19 November 2022 were tendered at the sentence hearing.

3. [25]

   The applicant’s history, as related in those three reports, was to the following effect.

4. [26]

   The applicant has one sibling, a younger sister. She has no memory of her life before the age of 12 or 13 years. She recalled her mother was “a very cruel person” who was given to physical punishment such as “a belting”. Her parents divorced when she was aged 18. She was bullied at school but could not recall why. She obtained her Higher School Certificate and had an excellent employment record from that time, until about late 2021.

5. [27]

   The applicant commenced a relationship when aged 14 and moved in with her partner when aged 19. When she was aged 25, they had a son. They divorced when she was aged 29, after she discovered that her partner had been cheating on her. Initially her son lived with her, but when he was 16 years old, he moved in with his father. Her mother died in 2018, in circumstances that led to the applicant being shunned thereafter by her sister and her son.

6. [28]

   The applicant met Obiekie in 2019 and reported that after about six months or a year he became aggressive, emotionally abusive, and occasionally physically abusive, including pushing and choking her. He became jealous of her meeting with friends and controlling of her behaviour, as a result of which she lost all her friendships, so that by the time of her offences, she had no family support or friendships outside Obiekie. She told Dr Kwok of one particular incident:

7. [29]

   The applicant said that she had smoked cannabis since the age of 14 years, except when she was pregnant and breastfeeding, and was using ice “on a weekly basis” at the time of her offending (the SAR).

8. [30]

   As to her mental health, the applicant said that for as long as she could remember, she had been depressed. She reported that for a period of three to four years, from the age of about 16, she would self-harm by cutting herself, twice weekly, “in order to gain emotional relief and to stop herself from crying”. She attempted suicide shortly after finishing High School, which was around the time that her parents divorced. She recalled that she took herself to her general practitioner and “attended counselling for a few months, and also saw psychiatrists, but she did not find them helpful”. She had further counselling with a psychologist following the death of her mother. She attempted suicide again in 2022 by drinking floor cleaning fluid, while on bail, which led to her first admission to hospital for mental health reasons.

9. [31]

   Both Dr Kwok and Dr Furst diagnosed the applicant as having a major depressive disorder, although Dr Furst considered there were also underlying borderline personality traits. He also diagnosed her as having a substance use disorder. As to the applicant’s absence of any memory of her childhood, Dr Furst said:

10. [32]

    Following her loss of employment in late 2021, the applicant became homeless, until she secured public housing in about August 2022. At the time of her sentence, she still did not have any family support. She had commenced a new relationship.

11. [33]

    As to the applicant’s physical health, she has two ongoing conditions. She has been diagnosed with, and is being treated for, an underactive thyroid. In 2008, when she was aged about 32, she was diagnosed with Systemic Lupus Erythematosus (SLE), which is commonly known as Lupus. Dr Furst reported that its effects included arthritis, especially in her fingers, knees and ankles, and chronic pain:

12. [34]

    Dr Furst considered that the applicant’s incarceration would be more onerous:

13. [35]

    Her explanation in relation to the offences was that she had collected a package on behalf of her partner, oblivious to the fact that it contained illicit drugs. The applicant:

14. [36]

    The SAR reported that the applicant acknowledged the impact of her offending on the community, particularly having been confronted with the long-term effects of drug abuse while in custody.

15. [37]

    The applicant was assessed by the author of the SAR as having a “medium” risk of reoffending, according to the Level of service Inventory-Revised (the LSI-R). Dr Kwok assessed her as having “a low risk of reoffending”.

16. [38]

    As to any relationship between the applicant’s mental condition and her offending behaviour, Dr Kwok said:

The parties’ submissions on sentence

1. [39]

   In written submissions, as to the respective roles of the offenders, the Crown stated:

2. [40]

   The Crown accepted that there was no evidence that the applicant was aware of the quantity of the drug being imported. As to motive, the Crown submitted:

3. [41]

   The defence agreed with the Crown’s characterisation of the offenders’ respective roles and that the applicant’s motive was her “romantic attachment” to Obiekie. The defence submitted that the sentencing court would accept the applicant’s accounts in the forensic reports that Obiekie would become physically and emotionally abusive and controlling if she did not comply with his requests which reduced her moral culpability. It was further submitted that her mental and physical health diagnoses rendered her more vulnerable, reducing her moral culpability:

4. [42]

   The submission that the applicant’s moral culpability was reduced, in part because of her mental health issues, was underscored in oral submissions on sentence:

The remarks on sentence

1. [43]

   The structure of the sentencing judgment was such that it was divided into discrete sections for each offender which, of necessity, resulted in some duplication of material. The section concerning the applicant commenced with a summary of the asserted facts with which, the sentencing judge noted, the applicant had agreed. His Honour comprehensively summarised the reports of Dr Kwok and Dr Furst, the SAR, and the parties’ submissions, acknowledging the essence of the written submissions extracted at [39]-[41] above. As to oral submissions, the sentencing judge said, at [153]:

2. [44]

   In summarising the defence’s submissions, the sentencing judge expressly acknowledged the applicant’s submission in respect of her moral culpability and an application of the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194:

3. [45]

   Under the heading “Consideration”, his Honour made findings according to certain sub-sections of s 16A(2) of Pt 1B of the Crimes Act 1914 (Cth). Under the sub-heading “The nature and circumstances of the offence: s 16A(2)(a)”, the sentencing judge made the following findings in relation to the applicant’s vulnerability:

4. [46]

   As to specific deterrence (s 16A(2)(j) of the Crimes Act), the sentencing judge said that there was a need for specific deterrence, but it was “not [as] significant as general deterrence. It is apparent that [the applicant’s] conduct was inextricably entwined in her relationship with Obiekie”. Under the sub-heading “General deterrence: s 16A(2)(ja)”, his Honour said:

5. [47]

   Under the sub-heading “Prospects of rehabilitation: s 16A(2)(n)”, the sentencing judge noted the applicant’s intention to address her issues identified in the reports of Dr Kwok and Dr Furst, and Dr Kwok’s opinion that there was a low risk of her reoffending.

6. [48]

   Under the sub-heading “Character antecedents and background of the offender: s 16A(2)(m)”, the sentencing judge referred to the applicant’s traumatic childhood and her family estrangement as portrayed in the two forensic reports, and continued:

The applicant’s submissions on appeal

1. [49]

   In written submissions, the applicant referred to the passage extracted from the sentencing judgment at [46] above and submitted:

2. [50]

   The respondent replied that the sentencing judge accepted that the applicant was in an abusive relationship with Obiekie and that the only evidence of her motivation to commit the offences was her romantic attachment to him, as well as the reports and opinions of Dr Kwok and Dr Furst. Specifically, the sentencing judge accepted that the applicant’s capacity to think rationally was limited and that she acted on the direction of an abusive partner.

3. [51]

   As to whether those two facts were taken into account in respect of general deterrence and denunciation, the respondent submitted that the applicant had not expressly sought that they be applied to reduce general deterrence and denunciation, and therefore no error is disclosed.

Consideration

1. [52]

   It is trite to observe that in DPP (Cth) v De La Rosa, McClellan CJ at CL, at [177], summarised common law principles as to how a finding that an offender has, or had, a relevant mental condition, is to be applied in a sentencing exercise. Essentially, his Honour said that if that condition contributed to the commission of the offence in a material way, their moral culpability may be reduced, so that there is a reduced need for the sentence to reflect considerations of denunciation and specific and general deterrence. In the case of specific deterrence, there may be no need for it to be reflected in the sentence at all. It may also have mitigatory implications for the offender’s experience of custody. However, a mental condition that has adverse implications for the protection of the community, particularly an Antisocial Personality Disorder, may have an opposite effect on the sentence.

2. [53]

   The applicant’s counsel submitted for a finding of reduced moral culpability in both his written and oral submissions, as noted at [41] and [42] above. Counsel for the applicant particularly referred to Dr Kwok’s opinion that the applicant’s major depressive disorder, her drug use and her emotional dependence affected her ability to engage in rational thinking. The sentencing judge acknowledged this submission, as noted in the passage from the sentence judgment extracted at [44] above.

3. [54]

   The real question is whether his Honour took the applicant’s submission into account, since, surprisingly, there is no reference at all in the sentence judgment to a finding as to the level of the applicant’s moral culpability. Although in his reasoning in respect of specific deterrence, the sentencing judge engaged with the applicant’s relationship with Obiekie, there is no reference at all to the issue of whether general deterrence should be reduced, on any basis in the section dealing with general deterrence, extracted at [46] above. As noted in the applicant’s submissions, that section is in the same terms as its counterpart in the section of the judgment concerning Obiekie, although the subjective circumstances of the two offenders were quite different.

4. [55]

   Although there is not a separate section dealing with denunciation in the “Consideration” section of the judgment concerning the applicant, the passing reference that is made to that issue under the heading “General deterrence” suggests that his Honour’s reasoning applied to that consideration as well.

5. [56]

   An examination of the sentence judgment, in particular, the section under the heading “Consideration”, does not disclose an engagement with the principles in DPP (Cth) v De La Rosa. The sentencing judge did refer to the applicant’s issues that were identified in the forensic reports in relation to her rehabilitation and her mental state at the time, but not in a substantive fashion in the context of denunciation, specific or general deterrence or her conditions in custody. The only reference made to the applicant’s mental condition was that, in relation to specific deterrence, her conduct was “inextricably entwined” in her relationship with Obiekie.

6. [57]

   I would grant leave to appeal and uphold the appeal.

7. [58]

   In my view, a lesser sentence is warranted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35], [42] per French CJ, Hayne, Bell and Keane JJ. Accordingly, there is no need to consider ground 2.

Re-sentence

1. [59]

   In fixing the objective seriousness of the offences, I take into account the maximum penalty of the offences and the quantity involved in count 2, which is more than twice the minimum commercial quantity, and the applicant’s integral role and persistence in attempting to secure possession of the ice involved in count 2. In particular, I have regard to the nature and circumstances of the offences, the extent to which the two offences comprise a course of conduct, the impact of count 1 and potential impact of count 2 on the community: ss 16A(2)(a), (c) and (e) of the Crimes Act. It is unnecessary to fix the objective seriousness of the offence on a scale and I decline to do so: DH v R [2022] NSWCCA 200 at [58]-[60]; R v Walker [2023] NSWCCA 219 at [56] – [59].

2. [60]

   As to the applicant’s subjective case, I read on re-sentence an affidavit of the applicant’s solicitor, which annexes a further report by Dr Kwok, dated 19 January 2024. Dr Kwok took an additional history from the applicant, principally concerning her childhood, which she now was prepared to discuss. She disclosed a history of serious abuse at the hands of a trusted person outside the family, which occurred regularly for over a year. It is unnecessary to recount that history. She told Dr Kwok that her difficult relationship with her mother discouraged her from disclosing the abuse to her and that she had “blocked out much of my childhood [from my memory] in order to not think about the … abuse”. The history confirms Dr Furst’s hypothesis and is consistent with the applicant’s development of a major depressive disorder and substance use disorder.

3. [61]

   The applicant’s moral culpability is reduced by the extent to which her offending behaviour was consequent to her vulnerability to Obiekie, because of her emotional dependency on him, arising from her psychological disorders and social isolation, and his violent, abusive, and controlling behaviour.

4. [62]

   There is a need for the sentence to reflect specific deterrence because of the destabilising effect of her untreated continuing severe depressive disorder and substance use disorder, albeit minimally, in view of Dr Kwok’s assessment of the low risk of the applicant reoffending. General deterrence would ordinarily loom large in the sentencing exercise for drug importation offences but is moderated in the circumstances of this case by the applicant’s reduced moral culpability. Denunciation is similarly modified.

5. [63]

   I would impose an aggregate term of imprisonment for 7 years, backdated to commence on 5 September 2022 and expiring on 4 September 2029, with a non-parole period of 3 years 9 months, expiring on 4 June 2026. The indicative sentences for counts 1 and 2 are imprisonment for 2 years and for 5 years 9 months respectively.

Orders

1. [64]

   I propose the following orders: