Elchaar v R

1. [1]

   DAVIES J: I agree with Lonergan J.

2. [2]

   LONERGAN J: The applicant, Elias Elchaar, seeks leave to appeal against the sentence imposed on him following his plea of guilty to conspiring to traffic a commercial quantity of a controlled drug, namely methamphetamine. Two offences that occurred during the same period and circumstances of the other offending were also taken into account in the Section 16BA Schedule.

3. [3]

   The sentencing judge, Buscombe DCJ, imposed a term of imprisonment of 10 years and 6 months, with a non-parole period of 6 years and 6 months, which took into account a 25% reduction in sentence based on the guilty plea.

4. [4]

   The applicant appeals his sentence on two interrelated grounds:

   1. (1)

      His Honour erred in concluding that the applicant’s moral culpability had not been reduced as a result of his neurocognitive disorder by:

   2. (2)

      His Honour erred in failing, despite the fact that the applicant suffered from a neurocognitive disorder, to moderate the weight to be given to general deterrence in the sentencing exercise by:

5. [5]

   The offence on the indictment was one count of conspiracy to traffic a commercial quantity of a controlled drug contrary to ss 11.5(1) and 302.2(1) of the Commonwealth Criminal Code. That offence attracts a maximum potential penalty of life imprisonment and/or 7,500 penalty units. The applicant was sentenced to 10 years and 6 months’ imprisonment.

6. [6]

   The offences taken into account on sentence via the Section 16BA Schedule were dealing in proceeds of crime – money or property worth $1,000,000 or more in contravention of ss 11.5(1) and 400.3(1A) of the Criminal Code (Cth), which attracts a potential maximum sentence of 25 years’ imprisonment and/or 1,500 penalty units, and unlawfully possessing a radiocommunications device without authority in contravention of s 47(1) of the Radiocommunications Act 1992 (Cth), which attracts a potential maximum penalty of 2 years’ imprisonment and/or 1,500 penalty units.

The facts of the offending

1. [7]

   The facts upon which the offender was sentenced were the subject of a Statement of Agreed Facts, and are relevantly set out in the sentencing judge’s remarks on sentence. The following summary is taken from those remarks on sentence.

2. [8]

   As part of the relevant police operation, the offender, together with Brian Anthony Blackman, Jarrod Patrick Gallagher and Otenili Iongi, referred to as ‘the syndicate’ in the agreed facts, were subject to physical and electronic surveillance.

3. [9]

   Surveillance revealed that between 1 January 2021 and 7 June 2021, the syndicate conspired to traffic a commercial quantity of methamphetamine from Sydney, New South Wales to Perth, Western Australia in a crate. Communication between the syndicate via AN0M encrypted devices established that the crate was capable of containing up to ten units of methamphetamine described as “fry” or “work” in their communications.

4. [10]

   The syndicate conspired to engage in conduct in relation to money which was proceeds of general crime being cash which the syndicate described as “loot” or “papers” which was to be and in fact was transported in a crate from Perth, Western Australia to Sydney, New South Wales.

5. [11]

   Communications between the syndicate via AN0M encrypted devices established that the crate contained approximately $8 million in cash. At all times the offender was a user of an AN0M device with unique sender identification “EACEB4” with the IMEI number set out in the agreed facts. The service was active between 12 January 2021 and 2 June 2021 with handles being “Glamma 1” and “Huckleberry” in that time.

6. [12]

   During the relevant period the offender was part of the following AN0M group chats together with Blackman, Gallagher and Iongi: “Happy 2021”, “Glammazz”, and “Transjob”. During the relevant period the offender also communicated directly with Iongi and Blackman via AN0M.

7. [13]

   In terms of organising crates to be used for transportation, on 15 January 2021, Iongi contacted the offender and asked whether the persons in the Happy group chat were “involved on the job with us, warehouse, crates, et cetera”. The offender stated that “the only group we on at the moment is just us, me, you, Syd 7”, which is a reference to Blackman, “that’s our brother, and our friend Glamma”, a reference to Gallagher, “he talks with company for us”.

8. [14]

   On 16 January 2021 Gallagher told a Salvator Lupoi that he had secured a contract to move “eye”. The word “eye” is code for methamphetamine. Lupoi provided Gallagher with advice as to the specification for the crates in which it was planned to transport the methamphetamine. On the same day Gallagher provided an update to the syndicate in the group chat. It read “SA are sending the crates up Tuesday morning, then when the packed crates arrive in Western Australia your people can take measurements of the crate and then replicate it and build ten or so”. The offender replied “Yes, okay, that’s easily done”.

9. [15]

   On 20 January 2021 the syndicate had a further discussion in the group chat about the crates they were awaiting and the possibility of using the same crate used to transport the “work”, code for drugs, to Western Australia to transport “papers”, code for money, back to Sydney.

10. [16]

    In a conversation concerning what was to occur the following exchanges took place:

11. [17]

    On the same day Gallagher created the Glammazzz group chat with Blackman and the offender in which they discussed how the crate would be packed. The following message exchange occurred:

12. [18]

    On the same day the offender wrote to Iongi and forwarded him a series of message from the Glammazzz group chat and he said:

13. [19]

    On 22 January 2021 Gallagher forwarded the Happy group chat a number of messages he sent to Lupoi seeking updates about the status of the delivery of the crates. The offender responded “All good, no stress, it will eventually happen, first go is always a bit of teething”.

14. [20]

    On 27 January 2021 Gallagher passed on an update from Lupoi as to the arrival of the crates. The offender responded that he needed to draw and measure the crates in order to be able to copy them. The group members discussed the logistics of this occurring:

15. [21]

    On 28 January 2021 the syndicate discussed building the crates in the group chat. The offender told the others that he arranged for the work, the methamphetamine, to be delivered the coming Monday. The following is taken from a conversation that occurs on that day:

16. [22]

    The syndicate further discussed the size of the crates and the fact that the offender would need to modify them. During the conversation the offender stated “it’s okay to keep that big for when we do bigger lots and for bringing paper.”

17. [23]

    On 31 January 2021 the offender with the assistance of Gallagher constructed the crates at Gallagher’s former business premises located at Bankstown. On the evening of 31 January 2021 in the Happy group chat, the offender confirmed that he had constructed the crates: “crates are done, bro, I’ve posted your message to the boys about lockdown in Perth and I’ve told them to jump on here to talk”.

18. [24]

    On 1 February 2021 in the Happy group chat the syndicate discussed the logistics of the collection of the crates in Western Australia, the storage of the crates in Sydney and the packing of the crates. The offender asked who was going to show them how to package the crate and stated that it was important that they were shown how to do the first one.

19. [25]

    During February 2021 the syndicate continued to communicate with each other regarding the logistics of the plant to deliver crates of methamphetamine to Western Australia.

20. [26]

    On 17 April 2021 the syndicate commenced the Trans Job group chat. Later that day Iongi messaged the offender directly to ask when the courier would pick up the crate. The offender replied that he was waiting for another person, username Syd 7, to confirm our driver for pickup: “we be picking up crate Tuesday morning to go trans.”

21. [27]

    On 18 and 19 April 2021 the syndicate continued to liaise about arrangements for the transportation of the crate containing “fry”, clearly the methamphetamine, to Western Australia. The offender stated “Brother, transport is Tuesday, we want to send work to trans depot tomorrow so we’re not rushing things, is there a problem with that?”

22. [28]

    On 19 April 2021 the crate was packed with methamphetamine by workers of the syndicate at premises in Claymore, New South Wales. The offender sent a message confirming the pickup time of the crate the next day because, “I need to now organise my worker to take off work”.

23. [29]

    At about 4pm on the same day the offender sent an image of the crate to the group chat wrapped with black plastic on all sides with labels affixed to the sides.

24. [30]

    On 20 April 2021 the syndicate members communicated with the Transjob group chat and discussed the arrangements for the crate to be picked up from the Claymore premises and dropped to the depot, including who was to be asked for at the depot, what amount of cash was being paid to that person, what the driver should wear and the kind of car they should drive.

25. [31]

    Between 20 and 23 April 2021 the crate was transported between Sydney, New South Wales to Perth, Western Australia.

26. [32]

    What those agreed facts reveal is that the applicant involved himself at a number of key steps of the conspiracy, including using encrypted communication platforms (AN0M), instructing others on how to “use” a particular person and how much to tell that person about “the job” on 20 January 2021, identifying suitable premises where crates for use could be constructed on 31 January 2021, how to replicate and build the necessary crates, the logistics of collection in Western Australia, and storage and return, and in April, identifying the transport date of the “work”, sending photos of the package, wrapped and labelled crates, and arranging for their transport.

The expert reports and proceedings on sentence

1. [33]

   The applicant’s case on sentence included tender of the following expert evidence:

2. [34]

   The reports were admitted without objection. Neither Dr Henderson nor Mr McBride were required by the Crown for cross-examination, but nor did they have to be cross-examined if the basis of challenge to their opinions was incorrect assumptions of fact or failure to properly take into account the agreed facts on sentence: Isaac v R (2024) 384 FLR 431; [2024] NSWCCA 2 at [59]-[62] (Davies J, Hamill and Huggett JJ agreeing).

3. [35]

   Dr Henderson had assessed the applicant via audio-visual link for two and a half hours on 22 September 2023. Dr Henderson stated that he had reviewed the agreed statement of facts and the undated affidavit of Mr Michael Elchaar, the applicant’s older brother.

4. [36]

   Dr Henderson quoted the applicant’s rather limited description of his offending:

5. [37]

   Dr Henderson diagnosed the applicant with Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder, arising from his adverse developmental circumstances, exposure to trauma and childhood sexual abuse.

6. [38]

   In relation to the question of cognitive impairment, Dr Henderson stated that he “believed” that the applicant demonstrated cognitive impairment based on his learning difficulties, impulsive behaviours, mental state findings and cognitive assessment which appeared consistent with frontal lobe impairment or executive dysfunction. (This rather qualified conclusion pre-dated the assessment by Mr McBride).

7. [39]

   Dr Henderson stated that the applicant’s mental disorders significantly contributed to his use of stimulant drugs, specifically cocaine and methamphetamine, their use representing an attempt to “reduce the distressing symptoms associated with these previously undiagnosed and untreated disorders”, and that the applicant subsequently developed a severe substance use disorder. Dr Henderson concluded that the applicant was “likely to have engaged in the offending behaviour in order to finance his self-medicating of these mental disorders”. (Emphasis added).

8. [40]

   Mr McBride assessed the applicant on 18 October 2023. The report does not state whether this assessment took place in person, or the duration of the assessment. Mr McBride stated that his assessment report was based upon his clinical interview and his neuropsychological assessment of the applicant. There is no evidence that Mr McBride was provided with the agreed facts of the offending. He was thus reliant upon the (minimised) account of the offending contained in Dr Henderson’s report given by the applicant. Nothing in Mr McBride’s report suggests he was given any other account of the offending by the applicant.

9. [41]

   Mr McBride found that the applicant’s neurocognitive profile was characterised by impaired attention, manifesting in a decrement in psychomotor speed and vulnerabilities distraction and significant impairments in the efficiency of frontal systems functioning. Mr McBride noted that the applicant had significant impairment of executive functioning which was likely to manifest as “poor planning, impulsive behaviour, disinhibition and failure to think through consequences”. Mr McBride stated that these functions are “probably also affected by PTSD and Major Depressive Disorder symptoms”, although he does not explain his rationale for that conclusion.

10. [42]

    Mr McBride stated that the applicant’s frontal systems functioning and information processing speed are:

11. [43]

    Mr McBride stated that the applicant met the diagnostic criteria for Major Neurocognitive Disorder due to Multiple Aetiologies, Major Depressive Disorder, and PTSD, and concluded:

12. [44]

    Nowhere in his report does Mr McBride identify what he understood “the offending behaviour” to involve, nor does he explain how or why that offending behaviour can be described as “relatively impulsive”, or what he means by that phrase.

13. [45]

    Dr Henderson provided a brief supplementary report on 13 November 2023. In the section titled “Opinion”, he referred to the results of the neurocognitive assessment undertaken by Mr McBride, stated that the results confirm that the applicant suffers from executive dysfunction (frontal lobe impairment), which confers “impairment in planning, impulse control, disinhibition and impaired ability to consider consequences of actions”, and that the neurocognitive test results confirm that the applicant suffers from cognitive impairments in domains that are “relevant” and are of a severity to be relevant to the offending behaviour. In essence, Dr Henderson simply repeated Mr McBride’s conclusions without any further analysis.

14. [46]

    At the proceedings on sentence, it was evident that the sentencing judge had some disquiet over the “relatively impulsive offending” assumptions in Mr McBride’s report and Mr McBride’s consequential view that the applicant’s mental condition was “a factor in his offending behaviour”. This disquiet is evident in the following exchange with the Crown: [1]

15. [47]

    Mr Brady, senior counsel for the applicant, dealt with the issue this way in oral submissions: [2]

16. [48]

    In the Crown’s supplementary written submissions specifically addressing the expert reports, the following statements were made on this issue, after recounting the key aspects of Dr Henderson and Mr McBride’s reports (correcting the referenced paragraphs in Moiler v R [2021] NSWCCA 73):

17. [49]

    In the written submissions of the applicant, this issue was dealt with by reference to extracts from the reports of Mr McBride and Dr Henderson followed by citing [177] of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, and then this single sentence:

Findings on the subjective case

1. [50]

   After going through the facts of the offending and making findings regarding objective seriousness, his Honour dealt with the applicant’s subjective case. His Honour’s findings are expressed with the precision and clarity of a judge well-versed in the application of relevant principles and the evaluative tasks embedded in the sentencing exercise. His Honour set out the opinions of Dr Henderson and Mr McBride, noting, consistently with principle, [3] that:

2. [51]

   In respect of the role played by the applicant’s mental health in the offending, his Honour made these findings: [4]

3. [52]

   His Honour acknowledged that to the extent the applicant engaged in the offending to fund his drug habit, or that his judgment was impaired because of his drug use, his moral culpability for his offending would not be reduced.

4. [53]

   His Honour did however conclude that the applicant’s history of drug use was linked to sexual abuse that he suffered as a young child, and that fact (the childhood sexual abuse), to a limited degree, mitigated his sentence: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.

Ground 2: The sentencing judged erred in failing to moderate the weight to be given to general deterrence in the sentencing exercise

1. [54]

   It is convenient to deal with the grounds of appeal together, because they arise from an assertion that the sentencing judge effectively “rejected” Dr Henderson’s and Mr McBride’s opinions without adequate reasons, and so failed to carry out the correct analysis directed towards potential reduction in moral culpability and potential reduction in the need for the sentence imposed to reflect general deterrence.

2. [55]

   Counsel for the applicant, Mr Lange, submitted that in light of both Dr Henderson’s and Mr McBride’s reports, it was not open to the sentencing judge to conclude that the applicant’s moral culpability was not reduced on account of his mental health, or that general deterrence did not have diminished weight. Mr Lange contended that the sentencing judge’s “rejection of Mr McBride’s report” appeared to have been based on Mr McBride’s assumption that the applicant’s offending behaviour was “relatively impulsive in the context of having a new family and being concerned about his capacity to provide for his family”. Mr Lange submitted that the sentencing judge did not pay regard to the context in which that assertion appeared, and that he effectively rejected Mr McBride’s opinion without good reason. The context was testing for and finding impairment in the applicant’s “frontal systems functioning” which Mr Henderson described as “a factor in his offending behaviour”.

3. [56]

   Separately, Mr Lange submitted that the sentencing judge applied the wrong test where he stated that: “Nothing in the material that is before me supports a finding that his judgment was so impaired by his mental health that he did not understand the likely consequences of his actions”, because as stated in De La Rosa at [177], and further discussed in DB v R [2023] NSWCCA 323 at [52] (”DB”), “The question for consideration is not whether there was a ‘causal link’ between the mental health condition and the offending, but whether the mental health condition contributed to the commission of the offence in a material way.” (Emphasis in original).

4. [57]

   Mr Lange submitted that in articulating the issue in the way that he did, his Honour did not address the correct issue – that is, whether the mental health condition contributed to the offending in a material way.

5. [58]

   Mr Chhabra on behalf of the Crown submitted that it was open to the sentencing judge to find that there was no “relevant causal connection” between the applicant’s offending and his neurocognitive disorder, and that the term “relevant causal connection”, read in context, occurring just after reference to De La Rosa, is clearly a reference to the test of material contribution as articulated in De La Rosa.

6. [59]

   Mr Chhabra submitted that the report by Dr Henderson recorded a very much downplayed account of the applicant’s conduct in the conspiracy to transport drugs and money over the several months, the subject of the police surveillance and charged conduct. Although deferring to Mr McBride for a formal assessment of the applicant’s cognitive impairment, Dr Henderson’s supplementary report does no more than repeat Mr McBride’s conclusions, in circumstances where Mr McBride was not provided with the agreed facts on sentence at all. This means that Mr McBride’s evaluative assumption that the offending behaviour was “relatively impulsive” was not sustainable on the agreed facts, and so rendered his opinion consequently unsustainable because it was based on incorrect key assumptions. This was the approach his Honour took.

7. [60]

   Mr Chhabra argued that it was open to the sentencing judge to reject the opinion stated in Dr Henderson’s supplementary report that the impairments were relevant to the offending behaviour, given the inadequate basis for Mr McBride’s opinion, which Dr Henderson simply restated, rather than evaluated.

8. [61]

   Mr Chhabra submitted that the reports, taken either together or separately, did not form an adequate basis to require the sentencing judge to consider making a reduction in the sentence to reflect a reduction in moral culpability, let alone mandating one. The same considerations apply to the issue of the applicant being a suitable vehicle for general deterrence. The medical reports were flawed in their assumptions, and so also were their conclusions.

Consideration

1. [62]

   Whilst it is preferable to avoid using phrases that approximate rather than specifically re-state the test of material contribution in De La Rosa, it is evident that his Honour was focusing on and applying the correct test when rejecting the argument that there should be a reduction in sentence to reflect mental health considerations for the applicant.

2. [63]

   In this respect I agree with and adopt the remarks of Yehia J in RG v R [2025] NSWCCA 36 at [77]:

3. [64]

   Understood in context however, his Honour’s use of the terminology “relevant causal connection” and the way in which he articulated his analysis of the expert evidence in this aspect, does not fall into that area of potential error, as occurred in cases such as DB.

4. [65]

   The sentencing judge here provided sound reasons for first querying and then putting aside some aspects of the conclusions in the expert reports. He did not “reject” the expertise, or the objective neuropsychological testing results. What he rejected was the suggestion that the identified impairments played the contributory role in the offending contended for by the applicant.

5. [66]

   His Honour provided ample direct opportunity to senior counsel for the defendant to address his Honour’s concerns about the evaluation the experts made that the offending was “impulsive” or “relatively impulsive” as against the agreed facts of the offending which demonstrated separate, planned acts of organisation and participation over a number of months to a significant drug importation, and the movement of very large sums of money. The submissions made by senior counsel for the defendant at the sentence hearing did not, (and probably could not), remedy that fundamental tension.

6. [67]

   His Honour was clearly entitled in those circumstances to conclude the mental health impairments of the applicant did not make a material contribution to the offending.

7. [68]

   On the question of the role, if any, played by the applicant’s intellectual disability, his Honour was required to deal with a submission made by senior counsel for the applicant in the terms in which it was made. His Honour was not in any way suggesting that was the test to be applied under De La Rosa, or that this was the relevant test to apply in determining whether “moral culpability” was reduced. His Honour was simply rejecting the suggestion implicit in Mr Brady’s submission [5] that the evidence provided support for a conclusion that the applicant’s minor intellectual disability played a role in his offending, because he was “not in a position…to sit back and say, “What am I doing?””, as someone without his cognitive impairments could do. It was appropriate for his Honour to separately deal with that aspect of Mr Brady’s submissions.

Orders:

1. [69]

   Accordingly I propose the following orders:

   1. (1)

      Grant leave to appeal on sentence.

   2. (2)

      Appeal dismissed.

2. [70]

   YEHIA J: I have had the considerable advantage of reading the reasons for judgment of Lonergan J in draft. I agree with the orders proposed by her Honour and with her Honour’s reasons.