Carl v R

1. [1]

   LEEMING JA: These are my reasons for joining in the Court’s orders made immediately following the conclusion of the oral hearing on 10 July 2023 allowing the appeal, quashing the sentence imposed by the District Court, and resentencing the applicant to a term of imprisonment to be served by way of an Intensive Correction Order. The background is contained in the reasons for judgment of Yehia J, which I have read in draft, and with which these reasons assume familiarity.

2. [2]

   I was of the view, communicated to the parties at the commencement of the hearing, that ground 2 which complained that the applicant had been denied procedural fairness should be addressed first. That view reflected what had been said in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55, and the absence so far as I could see of any exceptional circumstances: see Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 at [36]-[37]. I was also of the view, after hearing full submissions from the applicant and the Crown, that this ground was made out. The submissions exchanged in advance of the sentencing hearing made it plain that the quality of the applicant’s remorse was not in issue. The Crown accepted that “[t]he evidence tendered on behalf of the offender suggests that he is genuinely remorseful” and conceded that s 21A(3)(i) of the Crimes Sentencing Procedure) Act 1999 (NSW) applied. The primary judge accurately noted that “The Crown accepted that he is remorseful” but yet made the qualified finding that “I regard his remorse as being somewhat limited”. There was no suggestion in the hearing that such a finding might be made. Had there been a suggestion, it might have been addressed in submissions. One basis for the finding was that the applicant had not given evidence, which his Honour regarded as “somewhat troubling”. Had notice of the possibility of this finding being made, or that the sentencing judge was troubled by the absence of evidence from the applicant, he might have been called in an attempt to address those concerns.

3. [3]

   The Crown’s main response was to contend that the District Court was not bound by the parties’ agreed position, and the weight to be given to the applicant’s remorse was a matter for District Court. Both those propositions may be accepted as far as they go, but they are no answer to something more fundamental: the applicant was entitled to be sentenced following a hearing which was procedurally fair. In the circumstances of this case, that required being given notice that the sentencing judge might depart from the agreed position as to remorse.

4. [4]

   When confronted with this during the hearing, the Crown said that “his Honour didn’t in fact reject remorse, he just had a reservation as to the extent of it, and the offender giving evidence about it really would not have removed that because his Honour was relying on what the applicant said in the early stages to the person who had completed the sentencing assessment report”. The first aspect of that response is not to the point, for evidently his Honour treated what he regarded as the applicant’s limited remorse as bearing upon his discretion. The second aspect of the Crown’s response must be rejected unless this Court were satisfied that there was no prospect that anything the applicant said could have affected the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54; MZAPC v Minister for Immigration and Border Protection (2021) 274 CLR 506; [2021] HCA 17 at [45]–[53]. There is no basis for reaching that conclusion, which in any event is falsified by his Honour’s explicit reliance on the failure to give evidence at the hearing, which he considered to be “somewhat troubling”.

5. [5]

   This is a straightforward case. Procedural fairness is concerned to avoid practical injustice. It must be borne in mind that the sentencing judge heard the parties in what was plainly a busy list (with the matter being stood in the list after an indication of its length was given) and reasons were given ex tempore immediately following argument. However, both sides would have learned for the first time when sentence was imposed that his Honour had departed from a common position as to remorse. The pressures of a busy court may well explain how that result came about, but there was a clear practical injustice in what occurred.

6. [6]

   Success on this ground was sufficient to require this Court to resentence. I was of the view at the time that grounds 3 and 4 were not satisfied, and, for the reasons given by Yehia J, that remains my view. At the time I was undecided as to whether ground 1 was made out, and in light of the updated expert evidence relied on in the event this Court re-sentenced, it was and is unnecessary to express a view on that ground. It was and is unnecessary to consider whether the sentence imposed was manifestly excessive, which was ground 5.

7. [7]

   Given the mid-range objective seriousness, the applicant’s favourable subjective case, the fact that he had served some nine months in prison, and the fact that the very large majority of all offending under this section receives a non-custodial sentence, it seemed perfectly plain that this was a case where an Intensive Correction Order should be imposed. A term of 2 years is appropriate, reduced so as to have regard to the time spent in custody: see Mandranis v R [2021] NSWCCA 97; 289 A Crim R 260. I was of the view that a condition requiring the applicant to see his doctor and to obtain and comply with an updated mental health treatment plan, was appropriate. The Crown was given full opportunity, including an adjournment over lunch, to be heard in respect of that course, but nothing was said to persuade me to the contrary.

8. [8]

   YEHIA J: Upon hearing the applicant’s appeal on 10 July 2023, the Court made orders that leave to appeal be granted, the appeal be upheld, and the applicant be resentenced to a term of imprisonment of 1 year, 2 months and 27 days to be served by way of an Intensive Correction Order (ICO). These are my reasons for those orders.

9. [9]

   The applicant, Joshua Carl sought leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence of imprisonment imposed on him by Abadee DCJ (the sentencing judge) on 7 October 2022, at the District Court in Gosford.

10. [10]

    The applicant entered a plea of guilty to one count of cultivating cannabis plants by enhanced indoor means for a commercial purpose, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act). The maximum penalty is 15 years imprisonment, with no standard non-parole period. The offence related to 36 cannabis plants that the applicant was cultivating in a locked room located inside the shed at his property.

11. [11]

    Pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), the sentencing judge took into account two further offences when sentencing the applicant, namely, an offence of dealing with property suspected of being proceeds of crime, contrary to s 193C(2) of the Crimes Act 1900 (NSW) (a total of $5,400); and, an offence of unauthorised possession of a prohibited weapon (an extendable baton), contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) (the Form 1 offences).

12. [12]

    The applicant entered a plea of guilty and the matter was committed for sentence. The sentencing judge applied a 25% discount to reflect the utilitarian value of the early guilty plea. The applicant was sentenced to a term of imprisonment of 3 years and 6 months, commencing on 7 October 2022 and expiring on 6 April 2026, with a non-parole period of 2 years and 1 month. The undiscounted sentence was 4 years and 8 months imprisonment.

13. [13]

    The applicant sought leave to appeal on five grounds, namely:

The Facts on Sentence

1. [14]

   The following summary of the facts is taken from the sentencing judge’s remarks on sentence (ROS). On 17 June 2021 at 7:30am, police executed a search warrant at the applicant’s property where he and his wife resided. The applicant and his wife were present in the main bedroom of the house.

2. [15]

   During a search of a shed at the property, police located a locked room that had been built inside the shed. The applicant provided a key to the police to access the locked room. Inside the room, police found a hydroponic cannabis growing system. Cannabis plants were growing in individual pots on the floor. Heat lamps hanging overhead were turned on at the time of entry. The heat lamps had shades around the globes.

3. [16]

   Each pot was connected to a water filtration system. The room was insulated and included electronic fans, large carbon filters, and ducting which led out of the room. The room appeared to be purpose-built for the cultivation of cannabis. Police subsequently located 36 cannabis plants inside.

4. [17]

   The applicant’s fingerprints were identified above a handle on a small door within the “grow room”, on the right-hand edge of a power box, on the end of a transformer, on the side of a ballast from the main garage, on light shades from the main garage, and triangular light shades from the attached garage.

5. [18]

   A black enhanced grow tent was located at the front of the shed. The tent was insulated and ventilated with exhaust fans and ducting. There were also drying racks hanging from the ceiling containing cannabis residue and a Centurion Mini Trimmer electropolished tumbler in the room. The tumbler was used to separate cannabis buds from their stems. Located inside of the shed, but outside of the purpose-built room and tent, were items indicative of an enterprise in cannabis cultivation. These included black vacuum-seal bags, electric fans, fertilisers, nutrients, seeding propagation grow cubes, secateurs, boxes for closed circuit television (CCTV) security cameras and insulation batts.

6. [19]

   A receipt from Bunnings dated 16 June 2021, was located and revealed that the applicant purchased four pulleys, a rope and two ratches. They matched the items used in the main purpose-built “grow room”. The double garage of the main house was converted into three separate makeshift enclosed grow rooms. One room contained 198 cannabis cuttings in soil in seedling trays, however, they did not fit the definition of cannabis plants, as they did not contain palmate leaves. The other two rooms consisted of electrical power points, cables hanging from the ceilings, carbon filters and ducting leading outside. The walls were built with Gyprock.

7. [20]

   In the rear shed, a mulcher and black plastic bags were found filled with soil and root systems. A brand new Rhino Pro carbon filter was located in the front bedroom on the floor.

8. [21]

   Located in the second bedroom included the following.

9. [22]

   In the upstairs lounge room, located in a wooden set of drawers, were two envelopes containing cash. One envelope contained $1,900 and the other contained $3,500. An extendable baton was also located on the applicant’s side of the bed in the main bedroom.

Remarks on Sentence

1. [23]

   The sentencing judge set out the circumstances of the offending on pages 1 –4 of the ROS. The sentencing judge observed that typically, a relevant consideration in assessing the gravity of the offending is the scale and sophistication of the cultivation and the offender’s role. The upper threshold of this offence category is 50 cannabis plants. The sentencing judge referred to the fact that 36 cannabis plants were located, noting that this was towards “the higher end of the scale for an offence of the subject kind”. The sentencing judge said that significant weight should be afforded to the offender’s role as a “principal”, having regard to the fact that his fingerprints were on the contents of the grow room; the applicant had purchased equipment and was the sole operator of the operation; and the scale of the operation indicated a level of sophistication.

2. [24]

   The sentencing judge took into account that the cannabis was grown in a purpose-built room; there were electronic fans, carbon filters and ducting installed; the double garage had been converted into three makeshift grow rooms; and the cultivation took over a large proportion of the property.

3. [25]

   After summarising the submissions made by the applicant’s counsel in support of the contention that the offending fell below the mid-range, the sentencing judge said that he did not consider it necessary to “tie myself in semantics as to whether the offender could be truly described as ‘principal’ or not”. His Honour continued, stating:

4. [26]

   The reference to “Simpson J’s criteria”, was a reference to the case of Hanh Thi Nguyen v The Queen [2011] NSWCCA 92; (2011) 208 A Crim R 432 (Nguyen), where her Honour outlined the characteristics of the role of an offender as a principal at [4]:

5. [27]

   The sentencing judge made a finding that the applicant did not act alone and deployed not “inconsiderable knowledge and ingenuity in setting up an enterprise”, using his private residence to conceal his offending. The sentencing judge concluded that the offence was within the mid-range of offending for an offence of this kind.

6. [28]

   In sentencing the applicant, the sentencing judge found that the offence, contrary to s 7(1) of the Weapons Prohibition Act contained on the Form 1, added to the significance of specific deterrence and retribution.

7. [29]

   The sentencing judge summarised the applicant’s subjective case. The applicant was 41 years old at the time of the offence. He is the youngest of three children. His parents separated when he was very young. His mother remarried and divorced his stepfather when he was a teenager. His family background did not appear especially warm or loving, nor was it abusive. The applicant moved out of home at a young age due to issues with his mother’s partner.

8. [30]

   He had limited contact with his biological father until recently. He moved schools on many occasions and, following the suicide of his grandfather, he engaged in acts of truancy and barely got through Year 10 before finishing school in Year 11.

9. [31]

   Following school, the applicant had short periods of employment in different jobs. He eventually set up his own business, which the sentencing judge found “showed a level of meritorious enterprise”. He has been in two intimate relationships and met his wife four years ago. He has a history of substance use and began consuming drugs as a teenager. He was smoking cannabis daily until about the age of 25. He stopped for a period until he was about 32 years old.

10. [32]

    There is a history of mental conditions in his family. At 16 years old, the applicant had a panic attack. He did not medicate, but instead, engaged in rigorous exercise and attended the gym to deal with his problems. At the age of 32, he was diagnosed with anxiety.

11. [33]

    In assessing the applicant’s moral culpability, the sentencing judge referred to an absence of any diagnosis being made at the date of the offending. With respect to the opinion expressed by Ms Zingirlis, psychologist, that the applicant suffered from substance use disorder, depression and general anxiety disorder, the sentencing judge said that these conditions should “carry little weight”. His Honour accepted that the applicant had a level of underlying anxiety but did not accept that it was “unduly incapacitating”.

12. [34]

    After noting that the offending was not impulsive, the sentencing judge found that the applicant’s mental condition and cannabis addiction did not “significantly reduce his culpability, even if they may help to explain his offending to a degree”.

13. [35]

    In relation to the applicant’s background, the sentencing judge concluded that the evidence of “debilitating mental abnormalities sourced from childhood” was not persuasive. His Honour observed that the applicant’s background was “far from the worst that this Court has seen from offenders of this kind for this particular offence”.

14. [36]

    In assessing the applicant’s good character, his Honour had regard to four written testimonials from Jessica Lacey (personal trainer); Frank Frazi (solicitor); John Manning (funeral director); and a family friend, Stuart Doughty. In determining that the testimonials had greater significance in relation to prospects of rehabilitation than good character, the sentencing judge said:

15. [37]

    The sentencing judge went on to assess the applicant’s remorse. His Honour had the benefit of a Sentencing Assessment Report. The author of the report stated that the applicant “appeared to justify his actions”. The applicant was motivated by financial hardship and a need to fund his cannabis addiction. However, the author of the report went on to say that the applicant “expressed good insight into the negative impacts his offending has had on his family, wife, neighbours and the local community informing his actions caused devastation to everyone”.

16. [38]

    The sentencing judge observed that the offender did not give evidence at his sentencing hearing, a matter that he considered “somewhat troubling”. After noting that the Crown accepted the applicant was remorseful, the sentencing judge concluded that the applicant’s remorse was “somewhat limited”.

17. [39]

    The sentencing judge accepted that the applicant had good prospects of rehabilitation and was unlikely to reoffend.

18. [40]

    The applicant’s wife was sentenced on 20 May 2022, following a plea of guilty to an offence of allowing a property to be used as a drug premises. She was sentenced in the Local Court to a Community Corrections Order for 12 months. The sentencing judge distinguished the cases, concluding, on the issue of parity, that the offence for which the applicant’s wife was sentenced was “far less serious in nature”, and, in her case, there were no Form 1 offences to be taken into account.

19. [41]

    The sentencing judge found that no penalty other than imprisonment was appropriate: see s 5 of the CSPA. In considering the submission that had been made on behalf of the applicant that he could serve his term of imprisonment by an ICO, the sentencing judge concluded that in view of the “offender’s heavy role in this enterprise, the gravity of offending is such that for the purposes of s 66(3) of the [CSPA], I do not regard that sentencing option as appropriate”. In any event, having determined that the discounted term of imprisonment was one of 3 years and 6 months, an ICO was not available.

Ground 1: The Sentencing Judge Erred in his Consideration of the Expert Evidence of the Applicant’s Mental Health

1. [42]

   The applicant submitted that the sentencing judge erred in his assessment that the applicant’s mental health condition was not “unduly incapacitating.” The sentencing judge provided no basis for rejecting that the “applicant fits within the usual paradigm engaging Muldrock [v the Queen (2011) 244 CLR 120; [2011] HCA 39] principles” and in addition, the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa), given that the Crown did not dispute that the applicant was suffering from mental illness at sentence. Although the sentencing judge found that there was no causal connection between the applicant’s mental health and the offending, his mental health was relevant to considerations of hardship in custody and general deterrence, regardless of whether a causal connection was established. The applicant further submitted that Ms Zingirlis was qualified to give an opinion on the effect that a term of imprisonment would have. Therefore, it was necessary for the sentencing judge to provide reasons for rejecting the unchallenged opinions of Ms Zingirlis and Mr Matheson.

2. [43]

   The respondent notes that the report of psychologist Ms Zingirlis did not establish that there was a “material causative connection” between the applicant’s mental conditions and the offending. The Crown did not accept that there was a causal connection between the applicant’s mental health and the offending nor was there a formal diagnosis made that the applicant had an anxiety or substance abuse disorder at the time of the offence.

3. [44]

   The respondent further submitted that during the sentencing proceedings, the applicant conceded that “his particular mental health liabilities, are not such that there is a direct causal link”, and that the offending was not a “reactionary type”. The sentencing judge accepted that the applicant suffered from anxiety but was of the view that it was not “unduly incapacitating”. His Honour also made findings that the applicant’s mental health and cannabis addiction did explain his offending “to a degree”. However, the sentencing judge found that a more significant contributing factor was the financial difficulties that arose from the pandemic.

4. [45]

   The respondent submitted that the offence demonstrated “a highly sophisticated hydroponic set up”. The offence was not “impulsive or disorganised”, which is assumed to be the case if the “material cause” of the offending was his mental health. The respondent noted that the sentencing judge did make a finding of special circumstances on the basis that the applicant had “issues that do need to be managed”. The applicant’s mental health was therefore taken into account in determining the structure of the sentence.

5. [46]

   The principles to be applied when sentencing an offender suffering from mental illness, intellectual handicap, or other mental health problems, were succinctly summarised by McClellan CJ at CL, in De La Rosa at [177], a decision which has been cited with approval by this Court on numerous occasions: see Can v R [2023] NSWCCA 179 at [57]; DC v R [2023] NSWCCA 82 at [73]; PB v R [2021] NSWCCA 285 at [109].

6. [47]

   In Barbieri v R [2016] NSWCCA 295, Simpson JA, at [53]–[54] summarised the three ways in which an offender’s mental condition may be taken into account on sentence:

7. [48]

   The question of whether there is a causal connection established between an offender’s mental health condition or intellectual impairment and the offending behaviour should not be approached in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case: see Luque v R [2017] NSWCCA 226 at [114]–[116] (Hamill J).

8. [49]

   The applicant relied upon two psychological assessment reports prepared by forensic psychologist, Yiota Zingirlis, and two reports prepared by the applicant’s treating psychologist, Roger Matheson. Ms Zingirlis summarised the applicant’s background which included a genetic predisposition to mental illness, a history of childhood adversity, early parental separation, and disrupted attachment with his primary caregivers.

9. [50]

   Ms Zingirlis opined that the applicant’s presentation and reported history indicated the presence of a substance use disorder. Despite efforts to remain abstinent, the applicant had frequently relapsed. His substance abuse impacted his general functioning, on his relationships and caused financial difficulties. The applicant’s use of cannabis was a way to manage symptoms of general anxiety disorder. It was noted that he had a strong genetic predisposition to this condition. He had difficulties managing his anxieties and experienced sleep disturbance, difficulty concentrating, panic and other physical symptoms.

10. [51]

    The relevance of the applicant’s mental health condition to the offending behaviour was summarised by Ms Zingirlis as follows:

11. [52]

    Mr Matheson, registered psychologist, administered five self-rate questionnaires. On the basis of these assessments and interviews with the applicant, Mr Matheson concluded that the applicant met the diagnostic criteria for major depressive disorder, with anxious distress and other mixed features, generalised anxiety disorder, and post-traumatic stress disorder (PTSD).

12. [53]

    There was no challenge to this material by the Crown during the sentencing proceedings. No objection was taken to the contents of the reports and the psychologists were not required for cross-examination.

13. [54]

    The applicant’s written submissions on sentence asserted that his mental health condition was relevant in a number of ways, namely, to a reduction in moral culpability; a moderation of the weight to be afforded to general deterrence, retribution and denunciation; rendering conditions in custody more onerous; and his mental profile did not place the applicant in a category of future dangerousness.

14. [55]

    The Crown, in written submissions on sentence, disputed that there was a causal link established between the diagnosis of mental health conditions and the offending. The Crown submitted that the applicant’s high levels of anxiety and depression at the time of testing cannot be excluded as being “situational”.

15. [56]

    By the time the matter was listed for sentence, the sentencing judge had the benefit of the documentary material which included an outline of written submissions filed on behalf of the applicant and the Crown. At the commencement of the oral hearing, two issues were identified where there was dispute between the parties. The first issue related to the objective seriousness of the offence. Relevantly, the second issue related to the applicant’s mental health condition and how it impacted on sentence.

16. [57]

    It was during oral submissions before the sentencing judge that counsel for the applicant accepted that the applicant’s mental health liabilities were not such as to establish a direct causal link. Notwithstanding that concession, the applicant’s mental health was relied on in support of the contention that the weight to be afforded to general deterrence, retribution and denunciation should be moderated, and that the applicant faced more difficult conditions in custody.

17. [58]

    It was open to the sentencing judge to find that there was insufficient evidence to establish a direct causal connection between the applicant’s mental health condition and the offending, such as to reduce his moral culpability. So much was conceded by the applicant’s counsel in the Court below. The sentencing judge did not completely reject the mitigatory nature of the psychological evidence. Instead, the sentencing judge found that the applicant’s mental condition and cannabis addiction did “not significantly reduce his culpability”, suggesting that the applicant’s mental health condition and cannabis addiction was taken into account in reducing culpability, to some extent.

18. [59]

    The sentencing judge did not, however, specifically address the way in which the applicant’s mental health moderated general deterrence, retribution and denunciation, if at all; nor did the sentencing judge address the question as to whether the applicant would experience more onerous conditions in custody as a result of his mental health issues. While his Honour accepted that the applicant had “a level of underlying anxiety”, he did not accept that his condition was “unduly incapacitating”.

19. [60]

    The sentencing judge appears to have made that determination on the basis of the contents of some of the testimonials that attested to the applicant’s “extraordinary work ethic”, “an ability to face up to his personal problems”, and “a drive to do well”.

20. [61]

    Although there was some material to suggest that his mental health condition was not completely incapacitating, the unchallenged evidence from the two psychologists was that the applicant was experiencing severe symptoms of depression, anxiety, and stress.

21. [62]

    Ms Zingirlis administered the Depression, Anxiety, and Stress Scale 21 (DASS-21) assessment tool. It is not designed as a diagnostic tool but rather a measure of existing symptomology. The assessment revealed extremely severe symptomology in the area of anxiety and depression, with severe levels of stress.

22. [63]

    The applicant was also tested using the Drug Use Disorders Identification Test (DUDIT). A male scoring six or more points is considered to “probably have drug-related problems”. The applicant’s responses in relation to his cannabis use at the material time leading up to the charges indicated that he experienced dependence with a score of 40 on this tool.

23. [64]

    Ms Zingirlis concluded that the applicant’s presentation and reported history indicated the presence of a substance use disorder and that his use of cannabis was a way to manage symptoms of general anxiety disorder.

24. [65]

    Mr Matheson used five instruments, as well as interviews, to assess the applicant. The instruments deployed included the Kessler Psychological Distress Scale, the Alcohol Use Disorders Identification Test (AUDIT), the Post Traumatic Stress Disorder Checklist (PCL-5), and the World Health Organisation Disability Assessment Schedule (WHODAS), to conclude that the applicant met the diagnostic criteria for major depressive disorder, generalised anxiety disorder and PTSD.

25. [66]

    Ms Zingirlis observed that whilst the sentencing disposition is solely a matter for the court, taking into account the available information and the applicant’s circumstances, a community sentence with appropriate support of monitoring, would assist with the ongoing stabilisation of his mental health and ability to function in a prosocial manner within the community.

26. [67]

    The unchallenged psychological evidence presented a profile of an individual who was experiencing severe symptomology resulting from his mental condition. Although not causally connected to the offending, the material was relevant in moderating general deterrence, retribution and denunciation, and in mitigating the sentence by reason of more onerous conditions in custody. The sentencing judge failed to have regard to these matters.

27. [68]

    Ground 1 is made out.

Ground 2: The Applicant was Denied Procedural Fairness when the Sentencing Judge Departed from the Crown’s Concessions with respect to Remorse

1. [69]

   The applicant relied upon the Crown’s concession on sentence that the applicant was remorseful and “accepted responsibility for his offending on the evidence provided to the court”. The sentencing judge departed from the joint position of the parties in finding that the applicant’s remorse was “somewhat limited”. In failing to raise the matter or put the applicant on notice, it was submitted that the applicant was denied procedural fairness.

2. [70]

   The respondent submitted that the sentencing judge was not required to raise his concerns, or put the applicant on notice, because this was not a case where the sentencing judge blanketly rejected remorse, but rather made a qualified finding. In circumstances where the sentencing judge also made a favourable finding in relation to the applicant’s prospects of rehabilitation, no error is established.

3. [71]

   Ground 2 is not a complaint that the sentencing judge gave insufficient weight to remorse. It is accepted that the weight and cogency of evidence is always a matter for the individual assessment and evaluative judgment of the sentencing judge. The complaint is one of a denial of procedural fairness, a complaint that was not grappled with by the Crown in this Court. The denial of procedural fairness claimed in this appeal is the absence of an opportunity to be heard in relation to the extent of the remorse shown by the applicant, and its significance as a mitigating factor in determining the appropriate sentence: see s 21A(3)(i) of the CSPA.

4. [72]

   The principles relevant to a denial of procedural fairness were outlined in Weir v Regina [2011] NSWCCA 123, per Garling J (Macfarlan JA and Johnson J agreeing), at [64]–[67]:

5. [73]

   Whether there has been a denial of procedural fairness is a matter of substance that must be determined by reference to the circumstances: see ES v R [2019] NSWCCA 262 at [49]. The ultimate question is whether there has been unfairness: see Saunders v R [2022] NSWCCA 174 at [55] (Saunders).

6. [74]

   Both parties addressed the issue of remorse in written submissions on sentence. On behalf of the applicant, it was submitted in writing that the plea of guilty was a manifestation of remorse or contrition and evidence that he had accepted responsibility for his actions. The Crown’s outline of written submissions pointed to the evidence tendered on behalf of the applicant, accepting that it suggested that he “is genuinely remorseful for his offending”, adding that the applicant had clearly accepted responsibility for his offending, evidenced by his representations to his psychologist and the author of the Community Corrections Report.

7. [75]

   The parties had filed the relevant material, including written submissions, before the date of the hearing. At the commencement of the hearing, two issues were identified, about which the parties were not in agreement. The first issue related to the assessment of objective seriousness; the second, related to the relevance of the applicant’s mental condition. No issue was raised with respect to the applicant’s remorse.

8. [76]

   There is no question that a sentencing judge is not bound by any agreement between the prosecutor and the offender. A concession made by the prosecutor that an offender is genuinely remorseful, does not bind a sentencing judge: see Saunders at [58]; Mustafa v R [2021] NSWCCA 164 at [86].

9. [77]

   However, a party might be denied procedural fairness, where, as in the present case, the result of the Crown’s concession and the absence of notification that the submissions of the parties were not accepted, deprived the applicant of an opportunity to be heard. The sentencing judge did not raise any concern during the hearing about the material relied upon to establish remorse. The applicant was not put on notice that the sentencing judge, contrary to the agreed position, might make a qualified finding.

10. [78]

    Had the sentencing judge put the applicant on notice, he may have given evidence about his conversation with the author of the Sentencing Assessment Report. He may have called further evidence to demonstrate his remorse. Comprehensive oral submissions could have been made about the significance of the applicant’s remorse. Counsel could have provided relevant authorities in support of the contention that there is no requirement that an applicant give sworn evidence before remorse can be given full weight as a mitigating factor.

11. [79]

    In making a finding that the applicant’s remorse was somewhat limited, the sentencing judge was troubled by the fact that the applicant did not give evidence at the sentencing hearing. Had the sentencing judge raised his concern, he may have been referred to several decisions of this Court recognising that there is no statutory requirement that an offender give evidence before remorse is taken into account in the calculation of sentence.

12. [80]

    A proper construction of s 21A(3)(i) of the CSPA, requires an offender to provide evidence that he has accepted responsibility for his actions. The requirement to provide evidence of remorse does not equate with a requirement that an offender give evidence of remorse: see Butters, Jarrod Dean v R [2010] NSWCCA 1 at [16]–[17]; Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297 at [66]–[67]; AH v R [2020] NSWCCA 279 at [73]; Morrie Paul DOUMIT v R [2011] NSWCCA 134 at [19]; Sun v R [2011] NSWCCA 99 at [25], [31].

13. [81]

    No such opportunity was afforded to the applicant.

14. [82]

    The Crown, in written submissions on the appeal, relied upon the decision of Qutami v R [2001] NSWCCA 353; (2001) 127 A Crim R 369 (Qutami), in support of the proposition that the untested out-of-court statements made by offenders to third parties, in circumstances where the offender does not give evidence about the issue, are to be treated with caution. That submission is misconceived in light of the fact that the complaint here relates to a denial of procedural fairness, not to the weight to be afforded the applicant’s expressions of remorse.

15. [83]

    In any case, the continued reliance upon Qutami is questionable. There is no statutory requirement that evidence of remorse must be given by an offender in the witness box before it can be given full weight. The general observations made by Smart AJ in Qutami are not statements of principle, a matter that was emphasised by McCallum JA (as her Honour then was) in Lloyd v R [2022] NSWCCA 18 and with which I respectfully agree:

16. [84]

    Nor is it an answer to a complaint of denial of procedural fairness to assert that the sentencing judge made a finding that the offender’s prospects of rehabilitation are good and that he is unlikely to reoffend. Remorse, prospects of rehabilitation, and the unlikelihood of reoffending are separate mitigating factors: see s 21A(3)(g)–(i) of the CSPA. Although these concepts sometimes overlap, a positive finding in relation to one mitigating factor does not correct the error in making a qualified finding about another mitigating factor, in circumstances where there is an agreed position by the parties and a failure to provide an offender with the opportunity to address any concerns entertained by the sentencing judge, either by way of further evidence or submissions.

17. [85]

    In determining this ground, the concern of the law is to avoid practical injustice. The applicant was entitled, given the concession by the Crown, to proceed on the basis that genuine remorse had been established. The denial of procedural fairness was in failing to afford the applicant the opportunity to be heard on the extent and significance of remorse.

18. [86]

    Ground 2 is made out.

Ground 3: The Sentencing Judge Erred in Elevating the Objective Seriousness of the Offence Upon the Basis that the Applicant did not Act Alone

1. [87]

   Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court has repeatedly said that the assessment of objective seriousness made by a first instance judge involves an exercise of a broad discretion: see Mulato v R [2006] NSWCCA 282 at [37], [46]; Shipman v R [2016] NSWCCA 83 at [45]; Hartley v R [2020] NSWCCA 330 at [26]. The question is whether the particular characterisation that the sentencing judge gave to the circumstances of this offence was open to him.

2. [88]

   The sentencing judge assessed the objective seriousness of the offence as falling within the mid-range of offending for an offence of this kind. Following a summary of the facts the sentencing judge referred to the respective submissions of counsel. His Honour made a finding that the applicant applied not “inconsiderable knowledge and ingenuity in setting up an enterprise” and used his private residence to conceal the offending.

3. [89]

   A factor that the sentencing judge appeared to take into account in assessing objective seriousness was a finding that the applicant did not act alone. His Honour referred to the applicant’s submissions on sentence, in concluding that the applicant at least derived some unspecified assistance from the co-offender.

4. [90]

   The only individual to whom that reference could have applied was the applicant’s wife, who had been charged with a related offence but was not strictly a co-offender. The applicant’s wife pleaded guilty and was sentenced to a Community Corrections Order.

5. [91]

   The Agreed Facts Statement did not suggest that the applicant’s wife had provided some “unspecified assistance” to the applicant. The role of the applicant’s wife was simply an irrelevant consideration. However, I am not persuaded that the observation made by the sentencing judge that the applicant did not act alone, added any material difference to the assessment of objective seriousness.

6. [92]

   The finding that the offence fell within the mid-range of offending for this offence category was open to the sentencing judge having regard to the number of cannabis plants; the location of the applicant’s fingerprints on a number of items in the grow room; and the knowledge and ingenuity in setting up the enterprise. Ultimately, the sentencing judge did not consider it necessary to characterise the applicant’s role as one of a “principal”, although, it was noted that in a real sense, he satisfied most of the criteria identified in Nguyen.

7. [93]

   Ground 3 is not made out.

Ground 4: The Sentencing Judge Erred in his Application of the Applicant’s Good Character

1. [94]

   The applicant’s criminal record was limited. He had previous unrelated driving offences, which did not disentitle the applicant to a finding of good character. The sentencing judge observed that the absence of any relevant record “only goes so far and is more powerfully indicated by such indicia as his general good reputation, community works and so on”. The sentencing judge then referred to four references which were tendered on behalf of the applicant on sentence. His Honour concluded that:

2. [95]

   The sentencing judge did not refer to the character reference prepared by Michael Hanson. In that reference, Mr Hanson stated that the applicant had helped him move on multiple weekends, was a “…self-less person who cares for others” and had “…multiple rescue dogs from the pound…and demonstrated a love for all his animals”. His Honour’s failure to refer to this specific reference is understandable, bearing in mind that his Honour delivered and an ex tempore judgment. In any case, I am not persuaded that Mr Hanson’s reference added materially to the other evidence of good character.

3. [96]

   Section 21A(3)(f) of the CSPA provides that the offender’s good character is to be taken into account as a mitigating factor in determining the appropriate sentence for an offence. It is within the sentencing judge’s discretion to determine the appropriate weight to be given to good character: see Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [25]; Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190 at [76].

4. [97]

   His Honour did not articulate why the applicant’s prior good character was not of significant weight. It might be inferred that he came to that conclusion because the references to which he referred did not point to objective factors such as good works or contributions to the community.

5. [98]

   The sentencing judge considered the character testimonials to have “greater significance” in his assessment of the applicant’s prospects of rehabilitation, which were assessed as “good”. Furthermore, his Honour made a finding that the applicant is unlikely to reoffend. In all of the circumstances, I am not persuaded that the applicant has established an error on the part of the sentencing judge in the way in which good character was applied.

6. [99]

   Ground 4 is not made out.

Resentence

1. [100]

   Having found that error has been established with respect to grounds 1 and 2, it is not necessary to consider ground 5 which asserts that the sentence was manifestly excessive. I have had regard to the submissions made in support of ground 5 as far as they are relevant to resentencing.

2. [101]

   Where error is established, this Court “does not assess whether and to what degree the error influenced the outcome”: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. Rather, it is the duty of this Court to exercise the discretion afresh, including having regard to events since sentencing.

3. [102]

   In resentencing the applicant, I adopt the finding made by the sentencing judge that the objective seriousness of the offence falls in the middle of the range. There are no aggravating factors. I accept that the applicant has prior good character, good prospects of rehabilitation and is unlikely to reoffend.

4. [103]

   The applicant is remorseful and has demonstrated good insight into the negative impacts of his offending.

5. [104]

   In addition to the psychological material relied upon in the sentencing proceedings, the affidavit of Christopher Cole, affirmed on 27 June 2023, states that the applicant has reported that his mental health in custody is slowly deteriorating due to a number of factors including being previously housed in maximum security, multiple lock-ins, a lack of access to counselling, the financial hardship that his family is experiencing and anxiety resulting from the court proceedings.

6. [105]

   Ms Zingirlis recommended a mental health treatment plan which includes ongoing engagement with the applicant’s treating psychologist, medication, drug and alcohol counselling with a specialised drug and alcohol service, and regular reviews with the applicant’s General Practitioner. I am satisfied that the applicant’s mental health condition will be comprehensively addressed in the community.

7. [106]

   Having regard to the maximum penalty and the objective seriousness of the offence, I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate: see s 5(1) of the CSPA. I have also had regard to the purposes of sentencing. General deterrence and denunciation remain relevant considerations but are of reduced significance having regard to the applicant’s mental health condition.

8. [107]

   Specific deterrence and the protection of the community have little application in light of the applicant’s prior good character, his good prospects of rehabilitation and unlikelihood of reoffending and his expressions of remorse.

9. [108]

   Taking into account the Form 1 offences, and after an application of a discount of 25%, I am satisfied that a term of imprisonment of two years is warranted.

10. [109]

    I turn to consider whether the term of imprisonment can be served by way of an ICO. Section 66 of the CSPA provides:

11. [110]

    The Court is required by s 66(1) of the CSPA to have regard to community safety as the “paramount consideration” when deciding whether to make an ICO in relation to an offender. Section 66(2) requires the Court to assess whether making an ICO or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending. By s 66(3) the Court is required to again consider the provisions of s 3A of the CSPA, any common law sentencing principles, and any other matters that the Court thinks relevant.

12. [111]

    In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2003) 97 ALJR 107 (Stanley), the majority (Gordon, Edelman, Steward and Gleeson JJ) addressed the construction of the power to make an ICO, at [72]–[77]:

13. [112]

    In Zheng v R [2023] NSWCCA 64 at [282]–[286], Gleeson JA (with whom Hamill and Ierace JJ agreed) observed that five points emerge from the joint judgment in Stanley:

14. [113]

    I am comfortably of the view that community safety is best served by imposing an ICO. Furthermore, the applicant’s mental health and cannabis addiction can be comprehensively and effectively treated in the community. His treatment in the community under an ICO, rather than a period of full-time detention, is more likely to address the applicant’s risk of reoffending.

15. [114]

    On 10 July 2023, a unanimous view was reached that the appeal be upheld, and the applicant was resentenced to a term of imprisonment to be served by way of an ICO. Accordingly, the Court made the following orders:

    1. (1)

       Grant leave to appeal

    2. (2)

       Appeal allowed

    3. (3)

       The sentence imposed on the applicant in the District Court on 7 October 2022 is set aside and, in lieu thereof:

    4. (4)

       The applicant is directed to attend the Community Corrections Office at Wyong within 7 days of today’s date to facilitate the administration of this order.

16. [115]

    WEINSTEIN J: I agree with Yehia J and the additional comments of Leeming JA.