Da Silva v R

1. [1]

   STERN JA: On 6 December 2023, following pleas of guilty, the applicant was sentenced to an aggregate term of imprisonment of twelve years and nine months, with a non-parole period of eight years and three months, both to date from 29 September 2022, for three federal offences which took place on 29 September 2022. The offences were:

   1. (1)

      deal with proceeds of indictable crime, money/property $100,000 or more, contrary to s 400.4(1) of the Criminal Code (Cth) with a maximum penalty of 20 years imprisonment and/or 1,200 penalty points (Sequence 1);

   2. (2)

      traffic in a commercial quantity of a controlled drug, being methamphetamine, contrary to s 302.2(1) of the Criminal Code with a maximum penalty of life imprisonment and/or 7,500 penalty units (Sequence 2); and

   3. (3)

      traffic in a marketable quantity of a controlled drug, being cocaine, contrary to s 302.3(1) of the Criminal Code with a maximum penalty of 25 years imprisonment and/or 5,000 penalty units (Sequence 7).

2. [2]

   Pursuant to s 16BA of the Crimes Act 1914 (Cth), the applicant requested that the sentencing judge take into account a further offence charged as Sequence 8 on the indictment. This offence involved trafficking in a controlled drug (cocaine, cannabis and heroin) contrary to s 302.4(1) of the Criminal Code. I will refer to this as the “Schedule Offence”.

3. [3]

   The applicant seeks leave, and if leave is granted, to appeal against his sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). At the hearing of his application, he pressed only two of the three grounds in his proposed notice of appeal but (without objection from the Crown) was granted leave to advance an additional ground of appeal. The three grounds of appeal ultimately pressed were that:

4. [4]

   For the reasons set out below, I would grant leave to appeal and allow the appeal on ground 1A. I would dismiss grounds 1 and 2.

Background

1. [5]

   The applicant was sentenced on the basis of an agreed statement of facts dated 17 July 2023. The summary below is taken largely from this document.

2. [6]

   On 29 September 2022, the applicant was under observation by police and police executed various search warrants, including in respect of the applicant’s vehicle and residence. In the execution of these warrants, the police identified a black satchel bag worn by the applicant that contained, among other things, two mobile phones, one of which was encrypted, and $1,500 in cash. Within a black backpack, which the applicant had in his possession, a black plastic bag was identified, containing four clear plastic packages containing a crystalline substance. This substance had a net weight of 3,475.9 grams of which 2,791.1 grams were pure methamphetamine. The applicant confirmed that the black backpack belonged to him.

3. [7]

   The police located a number of remote controlled structural hidden compartments within the applicant’s vehicle. Within one of these the police found items including:

4. [8]

   Two additional $5 notes were also located in the vehicle, which were consistent with being tokens.

5. [9]

   The following items were seized during a search of the applicant’s premises:

6. [10]

   The applicant’s banking and tax records indicated that he had no legitimate reason to be in possession of the $233,890 in cash seized by police. His phone was also examined. This showed discussions regarding the sale and supply of drugs as well as a ledger of his dealings.

7. [11]

   The $233,910 in cash seized from the applicant’s residence, his satchel bag and his vehicle, being proceeds of crime, constituted the basis for the Sequence 1 charge.

8. [12]

   The Sequence 2 charge related to the 2,791.1 grams of pure methamphetamine found in the black backpack and the 2,631.6 grams of pure methamphetamine found in the applicant’s vehicle.

9. [13]

   The Sequence 7 charge related to the 282 grams of cocaine found in the applicant’s vehicle.

10. [14]

    The Schedule Offence related to the 18.7 grams of pure cocaine, 236.2 grams of cannabis and 53.7 grams of heroin located in the applicant’s premises and vehicle.

11. [15]

    At the sentencing hearing, the Crown relied upon a sentencing assessment report dated 23 November 2023 from Kylie Moore, Community Corrections Officer. The applicant relied upon affidavits dated 27 November 2023 from himself and Maria Da Silva (his mother) as well as a report dated 27 November 2023 from a psychologist, Tim Watson-Munro (Watson-Munro report). None of this evidence was challenged, although submissions were made by the Crown as to the weight that should be given to some assertions made by the applicant in his affidavit and recorded by way of history in the Watson-Munro report.

Grounds 1 and 2

1. [16]

   As the applicant submitted, grounds 1 and 2 are related. The key contention in ground 1 is that the applicant was denied procedural fairness because the sentencing judge rejected the applicant’s affidavit evidence that he had been sexually abused as a child, when that evidence was not challenged and the sentencing judge gave no indication to the applicant that he would reject the evidence. In ground 2 the applicant contends that the sentencing judge failed to take into account a mandatory relevant consideration, being the evidence that the applicant was sexually abused as a child.

2. [17]

   Both grounds 1 and 2 are predicated upon the applicant’s contention that the sentencing judge was not satisfied that the applicant had in fact suffered any sexual abuse as a child. I would, however, reject that contention.

3. [18]

   To the extent that the applicant sought to rely upon his history of sexual abuse on sentence, it was for the applicant to satisfy the sentencing judge of the matters on which he relied on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). This included both the fact of the abuse having occurred, and, the abuse being relevant to the offending, that the abuse played a role, in some material way, in his offending conduct: DC v R [2023] NSWCCA 82 at [74] (Yehia J, Rothman and Wilson JJ agreeing); see also KAB v R [2015] NSWCCA 55 (“KAB”) at [64] (Wilson J, Ward JA and Simpson J agreeing (as their Honours then were)).

4. [19]

   Whilst, as set out above, a history of sexual abuse may be taken into account as a factor in mitigation of sentence where that history has contributed to the offender’s own criminality, the weight which should be given to it will depend very much on the facts of the individual case: Henry v R [2009] NSWCCA 69 at [15] (Grove J, McColl JA and Howie J agreeing).

5. [20]

   The applicant tendered his affidavit without any objection from the Crown. He was not required for cross-examination. In his affidavit, the applicant said that he was sexually assaulted in or around 2007 (when aged 10) on many occasions over a few months, by a family friend. He did not report this to anyone. He said that as a result he had experienced flashbacks, nightmares and post-traumatic stress disorder. He said that he began using drugs at the age of 14 to assist in dealing with the trauma, and his recreational use of drugs quickly became an addiction.

6. [21]

   Mr Watson-Munro said in his report:

7. [22]

   Mr Watson-Munro also said in his report:

8. [23]

   Under the heading “Opinion”, Mr Watson-Munro described the applicant having “drifted into a pattern of illicit drug use at a comparatively young age of 14 years… essentially [as] a means of self-medication for him”.

9. [24]

   In the applicant’s written submissions on sentence, it was submitted:

10. [25]

    The Crown made no reference to this evidence or to Mr Watson-Munro’s opinion about its significance in its written submissions on sentence.

11. [26]

    During the sentencing hearing, the sentencing judge made it clear, as regards the Watson-Munro report, that:

12. [27]

    Senior Counsel for the applicant at trial responded:

13. [28]

    The following exchange between the sentencing judge and Senior Counsel for the applicant occurred later in the sentencing hearing (Tcpt, 30 November 2023, p18(45)-20(8)):

14. [29]

    Having referred to the applicant having made attempts at rehabilitation, Senior Counsel for the applicant submitted orally:

15. [30]

    The following exchange then occurred:

16. [31]

    As is apparent, the sentencing judge made it very clear to Senior Counsel for the applicant that he did not necessarily accept that the childhood abuse suffered by the applicant had any material nexus to the offending. Ultimately, Senior Counsel for the applicant’s submission was that the abuse explained how the applicant got involved with, and continued to use, illicit drugs.

17. [32]

    Turning to the sentencing judgment, his Honour, at J[63]-[65], referred to the applicant’s affidavit evidence of sexual assault, why he did not tell anyone of this at the time, the ongoing pain and trauma this caused, and that he began using drugs to deal with the consequences of this trauma.

18. [33]

    As to Mr Watson-Munro’s reference to what the sentencing judge described as “the alleged rape”, the sentencing judge said at J[90]:

19. [34]

    It is fair to say that in this passage the sentencing judge was indicating some scepticism about the applicant’s affidavit evidence about the abuse.

20. [35]

    The sentencing judge found that the applicant was clearly a drug user at the time of the offending, but that the extent of that drug use was “nowhere near that which is asserted by the psychologist”: J[98]. This was in part on the basis of how well the applicant had progressed in custody without any intervention.

21. [36]

    The sentencing judge then referred to Mr Watson-Munro’s report as saying (at J[100]) that:

22. [37]

    The sentencing judge accepted that the applicant had a long running misuse of drugs but said at J[117]:

23. [38]

    At J[135], the sentencing judge said that he attributed “little weight to [the applicant’s] assertion that he was engaged in this to pay off his drug debt”.

24. [39]

    The applicant contends that, reading J[117] together with J[90], the sentencing judge rejected the evidence that the applicant had been sexually abused as a child. I do not agree.

25. [40]

    Read in the context of the judgment as a whole, what the sentencing judge was dealing with at J[117] was the issue of what, if any, nexus he should find between the sexual abuse and the offending, or whether the sexual abuse should otherwise be given weight in the sentencing exercise. Despite his scepticism, the sentencing judge did not find that the sexual abuse did not occur. In referring to the others’ perceptions of the applicant’s presentation, the sentencing judge should be taken to be referring to whether others had perceived ongoing effects of the sexual assault in the applicant. The sentencing judge should be taken as considering this not because his Honour was rejecting the applicant’s evidence that the assault occurred, but in the context of considering the ongoing sequelae of the sexual assault and whether these contributed to the offending and thus should be given weight in the sentencing process.

26. [41]

    The sentencing judge’s conclusion that little, if any, weight should be given to the history of sexual assault should also be read in the context of the sentencing judge’s unchallenged rejection of the applicant’s assertion that his conduct as “a low-level supplier of drugs… was fuelled by [his] drug addiction”: J[69]. Moreover, given the limited reliance by the applicant upon his history of sexual abuse in his written and oral submissions, and the sentencing judge’s finding that the offending was in the context of a sophisticated and highly successful enterprise involving significant quantities of both money and drugs (at J[45]-[46]), the sentencing judge’s assessment that little or no weight should be attributed to the history of sexual abuse is readily explicable and (for completeness given that error is not alleged) does not disclose error. As Wilson J held in KAB at [68], the weight to be given to evidence of childhood sexual abuse is a matter for the sentencing judge.

27. [42]

    Thus, whilst I of course accept that the principles of procedural fairness apply on sentencing: see eg Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318 at [43]-[45] (RS Hulme AJ, Basten JA and Button J agreeing), I would reject the applicant’s contention that there was any denial of procedural fairness in this respect. The evidence that the applicant had been sexually abused as a child was taken into account by the sentencing judge but was ultimately given little or no weight. The primary judge had signalled during the hearing that the question of “nexus” was one which troubled him, and the applicant was able to, and did, make submissions as to the causative significance of his history of sexual abuse. In these circumstances, what happened in this case is readily distinguishable from what occurred in Edmonds v R [2022] NSWCCA 103, where the sentencing judge rejected the offender’s evidence of having had a dysfunctional upbringing after indicating during the sentencing hearing that he was “not in a position to reject the version of events given by the offender”. It is also distinguishable from Beevers v The Queen [2016] VSCA 271, where the sentencing judge seemingly accepted an accused’s history of sexual abuse during argument but then concluded that he was not satisfied that the accused had been “sexually assaulted in the way you allege”.

28. [43]

    Nor, for the reasons set out above, did the sentencing judge fail to have regard to a material consideration as contended in ground 2. The sentencing judge had regard to the applicant’s history of sexual abuse, but ultimately accorded that history little or no weight in the sentencing process. As set out above, given the way in which submissions were put to the sentencing judge on behalf of the applicant, that approach did not disclose error.

29. [44]

    Grounds 1 and 2 should be rejected.

Ground 1A

1. [45]

   By ground 1A the applicant contends that the sentencing judge denied the applicant procedural fairness in rejecting the diagnoses set out in the Watson-Munro report without notice to the applicant. It is not suggested by the applicant that the sentencing judge gave any indication during the sentencing hearing that he would accept the diagnoses proffered by Mr Watson-Munro in his report. The applicant contends, however, that in circumstances where the diagnoses in the Watson-Munro report were not challenged by the Crown and Mr Watson-Munro was not cross-examined, it was incumbent upon the sentencing judge to give the applicant some notice before rejecting the diagnoses. This, the applicant contends, led to a material denial of procedural fairness.

2. [46]

   In his report, Mr Watson-Munro described the applicant as a “psychologically troubled man”. He said that “appropriate testing confirms a moderate and recurring Depressive Disorder with a broad spectrum of symptoms”. He later said that the Beck Depression Inventory, a self-reporting questionnaire, confirmed his clinical impression that the applicant’s symptoms were referable to a “Depressive Disorder (moderate and recurring) (296.32) according to DSM-5 criteria”. Mr Watson-Munro described the applicant as having:

3. [47]

   Mr Watson-Munro also said that the applicant’s stimulant abuse impacted upon his judgment referable to impulse control and consequential thinking. He said that, at the time of his telehealth interview with the applicant, the applicant had detoxified from illicit drugs, but that treatment for his drug use and underlying psychological problems was clearly indicated. He said that the applicant’s depression was “still significant”.

4. [48]

   As to the diagnosis of an overarching substance use disorder, I do not consider that this required any analysis over and above the sentencing judge’s consideration of the issue of the applicant’s history of drug use and his analysis of the causative significance of this. The applicant did not advance any submissions before the sentencing judge relying upon this overarching diagnosis as opposed to the fact of the applicant’s escalating history of drug use and addiction. The sentencing judge plainly considered the relevance of “drug addiction” on sentence at J[137]-[138] and, on appeal, no criticism was made of the sentencing judge’s treatment of this issue.

5. [49]

   As to the diagnosis of a depressive disorder, in his written submissions before the sentencing judge, the applicant relied upon this as a matter that had to be taken into account on sentence under s 16A(2)(m) of the Crimes Act. The Crown, in its written submissions, referred under the heading “Physical and mental condition (s 16A(2)(m))” to Mr Watson-Munro having diagnosed the applicant with a moderate depressive disorder. As is apparent, the Crown did not challenge Mr Watson-Munro’s diagnosis in this regard.

6. [50]

   The Crown contended that the applicant’s moral culpability ought not be moderated by this factor as Mr Watson-Munro did not say that it was causative of the offending. The Crown also relied upon the fact that Mr Watson-Munro did not say that this would make imprisonment more onerous for the applicant.

7. [51]

   As set out at [24]-[29] above, there were interchanges during the sentencing hearing about Mr Watson-Munro’s opinion and the applicant’s psychological issues. During the sentencing hearing the sentencing judge said:

8. [52]

   The sentencing judge clearly had some reservations about the telehealth methodology used by Mr Watson-Munro in interviewing the applicant and about the matters set out in his report. In this regard, in the sentencing judgment, his Honour said:

   1. (1)

      having noted the history in the Watson-Munro report of the applicant having long-standing symptoms of depression, anxiety, and an overarching substance use disorder dating back to the age of 14 years, this was not entirely consistent with what the applicant’s mother or his employer had said of him: J[89]. Given that neither the applicant’s mother nor his employer are recorded as saying anything about the applicant’s depression, but his mother does discuss his drug use, I assume that the sentencing judge is here referring to the substance use disorder (albeit that the only possible inconsistency as regards the employer’s positive opinion of the applicant would be if it were considered that the employer could not have held that opinion of someone with a substance use disorder);

   2. (2)

      that it was not for Mr Watson-Munro to “impose upon a Court his subjective assessment of the truthfulness and accuracy of what is put to him. They are matters which the Court must determine for itself upon the material tendered”: J[88]. This was said in response to Mr Watson-Munro’s statement that the applicant’s incarceration had had a salutary impact upon him in terms of his strong motivation to not reoffend in the future;

   3. (3)

      that it was not clear whether the telehealth assessment involved an audio-visual link or simply a telephone call: J[92];

   4. (4)

      that the relationship history as set out in the report were inconsistent with other material: J[93]-[95]; and

   5. (5)

      that Mr Watson-Munro’s description of the offending, occurring in the context of the applicant’s need to obtain money coupled with his poor judgement (which he seemed to attribute to the applicant’s paranoia, anxiety and drug use which had escalated in the setting of his self-medicating), did not sit comfortably with the agreed facts. In particular, the sentencing judge said (at J[97]) that:

9. [53]

   At J[101], the sentencing judge noted that “[u]pon examination by way of this telehealth facility”, the applicant was recorded as having acknowledged “a spectrum of symptoms reflective of a depressive disorder”. Then, at J[102], his Honour said:

10. [54]

    At J[136], the sentencing judge concluded:

11. [55]

    I would accept the applicant’s contention that, in rejecting Mr Watson-Munro’s diagnosis of depression in this way, the sentencing judge denied the applicant procedural fairness. This led to practical injustice. Mr Watson-Munro’s diagnosis flowed from his clinical impression of the applicant and the outcome of assessment using the Beck Depression Inventory. Whatever reservations the sentencing judge had about Mr Watson-Munro having conducted his assessment using a telehealth facility, in the absence of any challenge to Mr Watson-Munro’s opinion whether by submission or cross-examination, it was procedurally unfair for the primary judge to have rejected Mr Watson-Munro’s diagnosis without giving any indication to the applicant that he proposed to do so. The remarks of Allsop P in Devaney v R [2012] NSWCCA 285 at [88] (Price J agreeing) set out below apply with particular force in this case where the opinion of Mr Watson-Munro was premised upon his clinical impression and psychological testing:

12. [56]

    Further, as Basten JA said in O’Neil-Shaw v The Queen [2010] NSWCCA 42 at [26] (Howie and Johnson JJ agreeing), recently cited with approval in JA v R [2024] NSWCCA 130 at [15] (Basten AJA, N Adams and Huggett JJ agreeing):

13. [57]

    Contrary to the Crown’s contention, I would not infer that the sentencing judge took the applicant’s depressive disorder into account in adjusting the custodial component of the aggregate sentence to allow a longer period on parole: at J[118]. Had the sentencing judge been considering the applicant’s need for psychological treatment for depression when making this adjustment, I would have expected him to say something to indicate that. In the absence of any such indication, and having regard to the sentencing judge’s rejection of Mr Watson-Munro’s diagnoses at J[136], I would infer that at J[118] the sentencing judge was focussing on the applicant’s history of drug use, to which his Honour repeatedly referred, including at J[117].

14. [58]

    I would also reject the Crown’s contention that there was no unfairness. I would agree that there is no suggestion in the Watson-Munro report that the applicant’s depression had caused his offending (and Senior Counsel for the applicant at the sentencing hearing did not put his submission in that way). But on 1 November 2023 when the applicant was interviewed by Mr Watson-Munro, Mr Watson-Munro found him to present as being psychologically troubled and to have a depressive disorder. That conclusion was relied upon by the applicant in his written submissions. Consistent with the relevant principles summarised in Crane v R [2024] NSWCCA 87 at [68] (Yehia J, Stern JA and Rothman J agreeing), the applicant’s depressive disorder, which was ongoing at the time of Mr Watson-Munro’s interview of him, may have the consequence that a sentence may weigh more heavily on the applicant. That was a matter for the sentencing judge to consider, having regard to the opinion set out by Mr Watson-Munro. I would reject the Crown’s contention that there was no procedural fairness arising from the sentencing judge’s rejection of Mr Watson-Munro’s diagnosis of depression merely because Mr Watson-Munro did not say anything in his report about whether additional hardship or difficulty would be suffered by the applicant in custody on account of his depressive disorder.

15. [59]

    Ground 1A should be upheld.

Resentence

1. [60]

   The applicant’s counsel submitted that the preferable course if this Court upheld any of the grounds of appeal was for this Court to resentence the applicant, unless there was any suggestion from the Crown that “some of the claims that my client made should now be challenged”. The Crown’s position was that it was a matter for the applicant to choose whether this Court should resentence or remit the matter to the District Court for resentencing. The Crown did not give any indication that it sought, or would seek, to challenge either the applicant’s history of sexual assault or the diagnosis of Mr Watson-Munro.

2. [61]

   During the hearing of the appeal, the applicant’s counsel also indicated that the applicant did not challenge any of the sentencing judge’s findings save for the sentencing judge’s findings on his history of sexual abuse (at J[90], [117]), the finding that the extent of his drug use was nowhere near that which was asserted by Mr Watson-Munro (at J[98]) and the rejection of the diagnoses of Mr Watson-Munro (at J[136]).

3. [62]

   The applicant’s position is one which promotes efficiency and neither party suggested any unfairness would be occasioned thereby (albeit that the Crown submitted that the applicant may have the opportunity to put on further evidence if the matter was remitted for resentence). I am thus content to proceed in the manner sought by the applicant. Consistent with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, I approach this task on the basis that it is for this Court to form its own view of the appropriate sentence. I do so on the basis of the material before the sentencing judge, the sentencing judge’s unchallenged factual findings and assessments of objective seriousness: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9] (Bell, Keane, Nettle, Gordon and Edelman JJ).

4. [63]

   I do not propose to restate the sentencing judge’s findings, and my conclusion on resentence should be read together with the sentencing judge’s unchallenged findings. Suffice to say I would agree with the sentencing judge’s characterisation of the applicant’s offending as sophisticated and successful, occurring in the context of what was clearly an ongoing operation (although that does not, of course, mean that the applicant should be sentenced for anything other than the offences themselves).

5. [64]

   As the sentencing judge found, Sequences 1 and 2 were serious examples of the respective offences, and Sequence 7 was at the lower end of the scale.

6. [65]

   I would not give any significant weight to the applicant’s history of sexual abuse and overarching substance abuse disorder (both of which I would accept). I would accept that the childhood sexual abuse contributed to the applicant’s initial forays into drug taking, that the applicant developed a substance abuse disorder, and that this led to his involvement in the drug milieu, including supplying drugs. However, that causal relationship was significantly attenuated having regard to the scale of the drug supply in which he was involved at the time of the offending conduct, and the offending conduct itself. This in turn significantly reduced the weight that I would give to these matters in the sentencing process.

7. [66]

   I thus do not consider that the applicant’s history of sexual abuse nor his substance use disorder materially impact upon his moral culpability, nor lessen the need for specific or general deterrence. Both specific and general deterrence are matters of some significance given the nature of the offending conduct.

8. [67]

   In addition to the matters that the sentencing judge found to be relevant, I would also take into account the applicant’s depressive disorder. Even without evidence, I would infer that suffering from such a disorder would cause a custodial sentence to weigh more heavily than would otherwise be the case. Like the primary judge, having regard to the applicant’s substance use disorder (and I would add, his depressive disorder), I have approached sentencing on the basis that I would allow a longer period of parole than I might otherwise have done to facilitate the applicant’s return into the community.

9. [68]

   I have also taken into account the Schedule Offence with a view to increasing the penalty that would otherwise be appropriate for the particular offence by giving greater weight to the need for personal deterrence and the community’s entitlement to retribution, consistent with Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) NSWLR 146; [2002] NSWCCA 518 at [18]-[19] (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing).

10. [69]

    In the circumstances, having adopted a discount of 25% for the applicant’s guilty pleas, under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), as picked up by s 68(1) of the Judiciary Act 1903 (Cth): McGregor v R [2024] NSWCCA 200 at [66]-[92] (Bell CJ, Kirk JA, Harrison CJ at CL, Davies J and Sweeney J), I would impose an aggregate sentence, to commence on 29 September 2022, of ten years and nine months for the three offences (to expire on 28 June 2033), with a non-parole period, imposed under s 19AB(1) of the Crimes Act 1914, of six years and ten months (to expire on 28 July 2029).

11. [70]

    The indicative sentences I would have imposed (before the 25% discount for the guilty plea) are:

    1. (1)

       four years and three months for Sequence 1;

    2. (2)

       ten years and six months for Sequence 2; and

    3. (3)

       four years and six months for Sequence 7.

Conclusion

1. [71]

   Accordingly, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal is allowed.

   3. (3)

      Sentence imposed by Bennett DCJ on 6 December 2023 is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of imprisonment, to commence on 29 September 2022, of ten years and nine months (to expire on 28 June 2033), with a non-parole period of six years and ten months (to expire on 28 July 2029).

2. [72]

   DHANJI J: I agree with Stern JA.

3. [73]

   FAULKNER J: I agree with Stern JA.