Care v The The Queen

[2022] NSWCCA 101

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Care v R [2022] NSWCCA 101

Hearing dates:

14 March 2022

Date of orders:

20 May 2022

Decision date:

20 May 2022

Before:

Macfarlan JA at [1];
Walton J at [2];
Rothman J at [3]

Decision:

(1)   Grant leave to appeal;

(2)   Uphold the appeal;

(3)   Quash the sentence imposed on the applicant, Adrian Cosmo Care, in the District Court on 17 December 2020 and, in lieu thereof, sentence the applicant, Adrian Cosmo Care, to an aggregate sentence of a non-parole period of 3 years and 6 months commencing 22 June 2019 and concluding 21 December 2022, and the remainder of the term of imprisonment, being 1 year and 9 months to conclude on 21 September 2024.

Catchwords:

CRIME – Sentence Appeal – operation of pre-conditions to s 21A(3)(I) OF Crimes (Sentencing Procedure) Act – failure to take account of mandatory consideration – mistake of fact as to extent of applicant deprivation – non-acceptance of unchallenged and uncontroverted evidence – appeal upheld – resentence.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A and 22

Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:

Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37
Butters v R [2010] NSWCCA 1
Devaney v R [2012] NSWCCA 285
House v The King (1936) 55 CLR 499
Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25
Morrison v R (2009) 197 A Crim R 103; [2009] NSWCCA 211
Qutami v R (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Baker [2001] NSWCCA 85
R v Care; R v Al-Khateib [2020] NSWDC 856
Veen v The Queen (No 2) (1988) 164 CLR 465
Wong v The Queen (2001) 207 CLR 584

Category:

Principal judgment

Parties:

Adrian Cosmo Care (Applicant)
Regina (Crown)

Representation:

Counsel:
T Game SC / E James (Applicant)
E Wilkins SC (Respondent)

Solicitors:
City Group Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/91716

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Care; R v Al-Khateib [2020] NSWDC 856

Date of Decision:

17 December 2020

Before:

Bennet SC DCJ

File Number(s):

2019/91716

Judgment

1. MACFARLAN JA: I agree with Rothman J.

2. WALTON J: I agree with Rothman J.

3. ROTHMAN J: The applicant, Adrian Care, seeks leave to appeal against the sentenced imposed upon him by Judge Bennett SC in the District Court on 22 November 2020. The applicant pleaded guilty before the Local Court prior to his arraignment and was sentenced by Bennett SC DCJ to an aggregate term of imprisonment of 6 years and 9 months, commencing 22 June 2019 with a non-parole period of 4 years and 9 months, concluding 21 March 2024.

4. The offences to which the applicant pleaded guilty and for which he was sentenced were:

Count	Offence	Maximum penalty	Indicative Sentence
Indictment
Seq 3	Knowingly supply large commercial quantity methylamphetamine (1102.85g) – s 25(1) Drug Misuse and Trafficking Act	Life imprisonment (SNPP 15 years)	6 years (NPP 4y 6mo) incl. Form 1 offences (incl. 25% reduction for guilty plea)
Seq 9	Deal with proceeds of crime ($179,400) – s 193C(1) Crimes Act	5 years	1 year and 6 months (incl. 25% reduction for guilty plea)
Form 1
Seq 2	Participate in criminal group – s 93T(1) Crimes Act	Taken into account in Seq 3
Seq 6	Supply prohibited drug, namely 10.8g cocaine – s 25(1) Drugs Misuse and Trafficking Act
Seq 8	Supply prohibited drug, namely 56.5g cocaine – s 25(1) Drugs Misuse and Trafficking Act

5. As can be seen from the foregoing table, three offences were taken into account on the Form 1 in relation to Sequence 3, being the offence of knowingly supply large commercial quantity of methylamphetamine.

6. The applicant raises three grounds of appeal, which are:

1. Ground 1: The learned sentencing judge mistook the facts with regard to the applicant’s deprived background, causing his sentencing discretion to miscarry;

2. Ground 2: In the alternative to Ground 1, his Honour erred in not accepting the unchallenged evidence of the applicant’s mother, Suzanne Sarkis, with respect to the abuse suffered by the applicant between the ages of 7 and 13; and

3. Ground 3: The learned sentencing judge erred in failing to take into account the remorse shown by the applicant.

Facts

7. The learned sentencing judge sentenced the applicant and one of his co-offenders, Mr Al-Khateib, at the same time. A second co-offender, Mr Malik Husseini, was sentenced on another occasion.

8. As earlier stated, the applicant pleaded guilty to the offences for which he was sentenced at the earliest opportunity, being before the Local Court, prior to committal. The sentence occurred on the basis of the Statement of Agreed Facts (hereinafter “the Agreed Facts”), which forms part of the Crown Bundle at sentence. [1]

   1. Appeal Book, p 85.

9. The full facts were summarised by the learned sentencing judge in the Remarks on Sentence, which have been published,[2] and are further summarised here.

   2. R v Care; R v Al-Khateib [2020] NSWDC 856.

10. The three co-offenders, and four associated properties, were placed under surveillance by the police who were investigating the supply of cocaine.

11. At the first property, the surveillance footage discloses the applicant, and his co-offenders, placing a white substance in freezer bags and handling the white substance and bundles of cash on several occasions. The Agreed Facts note that several unknown people attended the property on various occasions and handled bundles of cash and white powder.

12. On one occasion, on 19 December 2018, the applicant was observed taking a garbage bag to the disposal chute immediately outside this location. Police recovered the garbage bag from the building’s garbage room shortly thereafter. Inside the garbage bag, police found white latex gloves bearing DNA profiles that matched the applicant and one of the co-offenders. A swab of the gloves returned a positive result for cocaine.

13. Police conducted a covert search warrant at these premises where they found freezer bags, rubber gloves, rubber bands, scissors, and plastic bag fragments, consistent with the items observed on the surveillance footage.

14. During a covert search of a second property, police located freezer bags, boxes of white gloves, electronic scales, cash and furniture, similar to that previously seen at the first property.

15. The police also executed a search warrant at a third address, where the applicant attempted to jump off the balcony of the unit. The applicant was injured, and police arrested him. Police recovered a total of 806.9g of methylamphetamine in three clear resealable bags and 10.08g of cocaine in a knotted clear plastic bag in various parts of the property.

16. Also discovered at that address was $179,400 in cash, secreted in various locations throughout the unit, including 16 large bundles of cash contained in a safe. At the same location, police located medication in the name of the applicant, several money counters, and multiple mobile phones. The fingerprints of the applicant and his co-accused were found on documents located at the address.

17. At a fourth location, police located 201.2g of methylamphetamine in a clear resealable bag on which a DNA profile was located which matched that of the applicant; 4.75g of methylamphetamine in a knotted freezer bag; and, 56.5g of cocaine in two knotted freezer bags. Also located at this address were two sets of electronic scales, one of which was contaminated with methylamphetamine and cocaine on which DNA matching the applicant was found, and unused freezer bags.

Remarks on Sentence

18. The sentence proceedings occurred on 20 November 2020 and his Honour delivered his Remarks and imposed the sentence on 17 December 2020.

19. The learned sentencing judge, in his introduction, noted the distinction in the circumstances of the two co-accused with whom his Honour was dealing, including the charges they faced, and roles they played in the offending. His Honour described the differences as such that the sentence was not to be determined “upon strictly comparable circumstances and facts”. [3]

    3. Remarks on Sentence, at [1].

20. Nevertheless, his Honour later complained of the “paucity of information with regard to precise activities and involvement which has not been supplemented by evidence led from the offenders in the case of [the applicant] who provided an Affidavit which was predominantly concerned with his subjective circumstances and not the role that he played in the enterprise.”[4]

    4. Remarks on Sentence, at [8].

21. His Honour set out the offences against the applicant and dealt with the applicant’s entitlement to a 25% discount for the utilitarian value of his plea of guilty at the earliest opportunity.

22. The sentencing judge then noted that the applicant had been in custody since 22 March 2019, when he was arrested for the offence with which the sentencing judge was dealing. This period of custody, however, was not wholly attributable to the conduct for which he was being sentenced by Bennett SC DCJ. On 27 September 2019, the applicant had been sentenced to an Intensive Corrections Order for an earlier offence, committed in 2017, for which he was on bail at the time of his arrest in March 2019.

23. His Honour had regard to the fact that the applicant had been in custody for conduct other than that for which he was to be sentenced by the sentencing judge. His Honour commenced the sentence on 22 June 2019, on the basis of the totality of the conduct upon which the applicant had engaged, being the matters for which he was to be sentenced by his Honour and the earlier offence committed in 2017.

24. The learned sentencing judge then recounted the facts in far more detail than has been necessary for the purpose of this appeal.

25. His Honour then spent a number of paragraphs dealing with the significance of the standard non-parole period (as it related to the supply offence) and noted the process of intuitive synthesis by reference to the reasons for judgment of McHugh J in Markarian. [5] His Honour acknowledged the principle that the maximum penalty and the standard non-parole periods are legislative guideposts. His Honour also referred to s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and ss 21A, and 22 of the Crimes (Sentencing Procedure) Act.

    5. Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25.

26. His Honour determined that the objective gravity of the offences upon which the applicant had engaged fell below mid-range of objective seriousness. The applicant, in this appeal, does not challenge the assessment of objective seriousness. His Honour took into account the facts as they were agreed before him, including the quantity of drugs involved and the amount of money that was the proceeds of crime.

27. It is relevant to note, at this stage, that at the sentence proceedings, the applicant relied upon an Affidavit sworn by himself on 20 November 2020; an Affidavit of the applicant’s mother, Ms Suzanne Sarkis, sworn 28 October 2020; and, two Reports of Mr Sam Borenstein, Clinical Psychologist, dated 19 September 2019 and 3 November 2020. There was also a character testimonial from the applicant’s brother, Mr Patrick Sarkis, which dealt to some extent with his elder brother’s early difficult life.

28. The Affidavits and the reports of the psychologist deal with the subjective circumstances of the applicant and the substance of those issues will be dealt with later in these reasons. A Sentencing Assessment Report was also tendered. His Honour had reference to these documents in his Remarks.

29. His Honour recited the age and criminal history of the applicant who, at the time of sentencing was 24 years of age. He has one prior offence of relevance, being the supply of a prohibited drug, which occurred in 2017 and to which earlier reference has been made.

30. The only other offence on the applicant’s record is driving a motor vehicle while his licence was suspended, which occurred in July 2016, for which he had imposed upon him a Bond for a period of 12 months. The applicant has not been in prison before his arrest for these charges.

31. His Honour dealt at some length with the subjective circumstances of the applicant. It is necessary to summarise his Honour’s approach in some detail.

32. By reference to a Sentence Assessment Report, the sentencing judge described the applicant’s early life with his abusive father, who “ultimately separated from his mother when the [applicant] was four years of age”. [6] His Honour then referred to the frequent moves of address during the applicant’s childhood, including the applicant’s residence at various refuges and his mother’s struggles to bring up the young family. His Honour referenced the fact that the applicant left school in year 11 (although the applicant left before the end of Year 10).

    6. Remarks on Sentence, at [35].

33. The sentencing judge noted that the applicant had been using illicit substances since his late teenage years to cope with depressive moods. Those substances were marijuana, MDMA and cocaine. His Honour later detailed the applicant’s introduction to methylamphetamine and subsequent addiction.

34. His Honour recited a passage of the Sentencing Assessment Report under the heading “Attitudes” but described the passage as of little assistance in the sentencing task. Reference was made in the Remarks to the mother’s interview and her comment that the applicant’s friends and acquaintances were poor influences on him.

35. His Honour noted that the assessing psychologist, who authored the Sentencing Assessment Report, attributed to the applicant a degree of insight, being a reference to the impact that imprisonment had on the applicant, and his understanding of the problems that drugs have been causing him and others. It was suggested in the Report that the applicant was willing to abide by whatever supervision was imposed upon him, but his Honour remarked that the conduct did “not allow such a lenient approach”. [7] The Sentencing Assessment Report placed the applicant at a medium level of risk.

    7. Remarks on Sentence, at [38].

36. The Remarks on Sentence then dealt with the two reports from Mr Borenstein. His Honour dealt with these at the same time as the Affidavits from the applicant and his mother.

37. The judgment then makes the following comment:

“[40]    I accept what is said on his behalf that he had an abusive childhood and it is apparent, as I shall make clear, that he focuses upon his father as the predominant reason for his embarkation upon the criminal misconduct which now has him before the Court. The representations attributed to him and which he has made in his affidavit, however, fail in my view to adequately address the efforts made by his mother to assist him and to be there for him through those difficult years, and it is also to be noted that his younger brother has progressed notwithstanding the difficulties that this family suffered and upon the material I have before me is a worthwhile and contributing member of society.

[41]    Thus, though I attribute to the offender the benefit of the principles enunciated in decisions such as Bugmy v The Queen [2013] HCA 37, it must be the case that he has not taken sufficient responsibility for his own decision to misconduct himself at the times when he has.”

38. His Honour then deals with the contents of the applicant’s Affidavit and seeks to summarise it. He acknowledges that the applicant has been free of drugs since he has been in custody, which he achieved without assistance, despite suffering withdrawal symptoms. Nevertheless, since that decision, the applicant has undertaken a drug and alcohol addiction course, entitled “Remand Addiction through Narcotics Anonymous”, which he has successfully completed.

39. At [51] of the Remarks on Sentence, the sentencing judge noted that “there is nothing before me that defines in any particularity the extent of [the applicant’s] conduct and his role in this organisation.” In that regard, his Honour considered that, based on the available evidence, he was unable to determine whether the applicant was involved in his own enterprise, with his co-offenders, or there were other persons higher in the hierarchy who reaped the major rewards of the criminal enterprise.

40. His Honour then noted that he was not satisfied that the first limb of s 21A(3)(i) had been satisfied and set out the terms of the paragraph. As a consequence of the failure to satisfy this provision, his Honour took the view that because the applicant had not “accepted responsibility for the precise and complete role that he had in this endeavour”[8] the first limb of the provision had not been satisfied.

    8. Remarks on Sentence, at [53].

41. His Honour recited some of the findings and comments of the Psychologist’s Reports. His Honour then summarised the mother’s Affidavit.

42. In the course of his Remarks, under the heading “Consideration”, his Honour deals with the absence of any evidence of the source of the drugs or their destination. His Honour noted that he was not in a position to make a finding one way or the other and that he was to assess the sentence on the basis of the Agreed Facts.

43. His Honour further noted that the offence with which the applicant was charged was being knowingly involved in the supply, rather than as a principal actually supplying, and that involvement was usually considered to be of a lower objective gravity to those who are more directly involved in the supply. His Honour reiterated his assessment of objective seriousness and that the applicant failed to satisfy the obligation imposed by the first limb of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. His Honour found special circumstances on account of his youth and because this was the applicant’s first time in custody.

Submissions

Applicant’s Submissions

44. In relation to Grounds 1 and 2, the applicant relies on the principles that deal with the manner in which social disadvantage should be treated, as recently reiterated in the High Court in Bugmy. [9]

    9. Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37.

45. The applicant has submitted that, although the sentencing judge found that Bugmy principles applied, he diminished the impact of those principles because his Honour concluded that the applicant did not take sufficient responsibility for his misconduct. The submission of the applicant is based upon the extract at [41] that has been recited above.

46. The applicant has also submitted that the sentencing judge’s determination of weight to be afforded to the Bugmy principles was founded on a mistaken view of the evidence before him. His Honour formed an understanding that, with the exception of a single occasion when the applicant was 12, the applicant was not exposed to physical abuse after the age of four. In that regard, the applicant refers to the following Remarks of the sentencing judge:

“[43]    He saw his mother struggle through her efforts to provide care for the children including movement from address to address and occupying refuges with random people at least in those initial stages of the separation. He refers to his father cheating on his mother and treating her like, ‘Crap’, but that must have been in the period of time up until he was four years of age because he had no contact with his father thereafter until some 12 years had passed when he was given the opportunity to work as an apprentice bricklayer during which time his mother had re-partnered. There was an occasion in 2005 when his mother took the boys to see his father but that led to violence by the father upon the mother leaving her bleeding. There is no further description of the extent of any injury she might have suffered in that confrontation.

[44]    He describes in his affidavit the move from address to address, his hate for his father. He speaks of it being normal to be in a home where screaming and physical abuse was part of everyday life, but once again that must be up until the age of four and then the subsequent one occasion when he was aged twelve. He writes of the area in which he and his brother and mother lived being less desirable and replete with homeless people and drug users. He had limited opportunities because his mother did not have the money to provide for opportunities such as they might have been for weekend sport. He did poorly at school. When he started high school, he had not achieved his pen licence from his primary school years and he was left to wear torn shoes that he’d had in the years before because his mother could not afford to provide otherwise. He had a bag that his mother acquired from the Smith Family.

[45]    All of these circumstances prompted him to turn from the world. His perception was that no‑one seemed to care for him and therefore he wondered why he should care for anyone else. He writes of having not had lunch at school on days when there was no money to provide it. His rebellion increased toward teachers and other students. He avoided class, began fights and stole lunch money from other students. In due course he was expelled in year 10. He then describes his apprenticeship in the course of which his father was abusive. Again, he writes of the father providing no stable home, no money, and hardly any food and screaming abuse every day. Again, that must be in the period up to the age of four years if within his family environment.”

47. In particular, the applicant relies upon the last sentence of the foregoing extract in the context of the other matters to which his Honour referred. The applicant submitted that this conclusion that the reference to violence at home must have been in the period up to the age of four, is inconsistent with the evidence of the applicant’s mother, particularly with respect to her third marriage. [10] The mother’s evidence in this respect was in the following terms:

“I was single for 3 years after Morris. My third marriage was to a man named Bill. Adrian was 7 at the time. This marriage lasted 6 years. It was a difficult time for my little boys as this was when they were becoming aware of their surroundings and I wanted Bill to be the father figure they longed [sic].

Unfortunately, Bill had a twisted way of disciplining my boys and would physically assault them. Adrian does not talk about this part of his life and will never open up to anyone about the abuse Bill inflicted on him.” [11]

10. Affidavit of Suzanne Sarkis, sworn 28 October 2020, at [13]-[14].

11. Ibid.

48. The foregoing evidence of the applicant’s mother was not challenged. The applicant’s mother was not the subject of cross-examination. Nor was there evidence inconsistent with that testimony. Further, the character reference from the applicant’s brother corroborated the ongoing abuse of their mother and the applicant, suffered at the hands of their mother’s ex-husbands.

49. These grounds of appeal are also supported by a submission that the learned sentencing judge was in error in emphasising the alternative path taken by the applicant’s brother. [12] The applicant refers, in particular, to the Remarks at [40], where his Honour referred to the failure of the applicant to address adequately the efforts of his mother in assisting him and supporting him, and noting that his younger brother had progressed notwithstanding the difficulties in the family.

    12. Remarks on Sentence, at [40].

50. The applicant submitted that at no stage did the applicant denigrate or diminish the support provided to him by his mother. On the contrary, the applicant was effusive in his praise of his mother’s support. Further, the learned sentencing judge, on the submission of the applicant, failed to appreciate that the applicant and his brother had different experiences and suffered differently from the hands of their mother’s partners, as well as the fact that different people have different reactions to the same circumstances.

51. In relation to Ground 3 of the appeal, the applicant submitted that the sentencing judge had before him sufficient evidence, in the applicant’s Affidavit, that he accepted responsibility for the offence. [13] The applicant submitted that there was no basis to reject this evidence.

    13. Affidavit of the applicant, sworn 20 November 2020; Appeal Book, p 109 at [51]-[58], [61]-[62], [64]-[68].

52. Again, the testimony of the applicant at sentence was not the subject of cross-examination. Nor was there evidence tendered that in any way challenged the evidence of the applicant. Thus, the learned sentencing judge, in the submission of the applicant, had no basis to reject his evidence.

53. As a consequence and otherwise, the applicant submitted that the sentencing judge was in error in determining that the applicant did not show remorse (either sufficiently or at all) on the basis that the applicant did not provide details regarding his “precise and complete role” in the criminal organisation. [14] If the applicant were to have provided “precise and complete” details of his role and the role of others, presumably higher in the hierarchy, this would have merited consideration as an ameliorative factor pursuant to the terms of s 21A(3)(m) and s 23 of the Crimes (Sentencing Procedure) Act. [15]

    14. Remarks on Sentence, at [53].

    15. Morrison v R (2009) 197 A Crim R 103; [2009] NSWCCA 211 at [30]-[31] (R A Hulme J, with whom McClellan CJ at CL and Grove J agreed).

Summary of Crown Submissions

54. The Crown has submitted that the appeal should be dismissed. In the event that error is established, the Crown submits that, upon an independent exercise of the sentencing discretion, this Court would not form the opinion that a less severe sentence is warranted in law.

Grounds 1 and 2

55. According to the Crown’s submission, the applicant has not demonstrated any error in the exercise of the sentencing judge’s discretion in relation to the weight to be given to the Bugmy factors, and these grounds of appeal should be rejected. The Crown submits that the sentencing judge considered the subjective material produced by the applicant in great detail, including the applicant’s abuse by his father and later stepfather, as well as the poverty and instability of his childhood.

56. On appeal, the Crown submitted that the sentencing judge did accept the contents of the mother’s Affidavit and, in particular, relied on the comments of the sentencing judge, at [65] of his Remarks, being:

“[65]    His mother’s affidavit generates significant sympathy, I must say. She has had her challenges in life and the last thing that she would need at this point is to see her son in custody looking down from a screen in a courtroom where a Judge is about to deliver sentence. She affirms the difficulties with the offender’s father. She had children from an earlier marriage. That husband abandoned her taking their children with him to New Zealand and she has lost contact with them. The third marriage is described. That involved what she described as a twisted way of disciplining her boys with physical assaults. The offender did not include any information regarding that in his affidavit, but if one accepts it to be the fact that must have contributed to the challenges through his formative years which I must bring to account.”

57. Moreover, on the Crown analysis, the applicant’s submission relies on the insufficiency of weight given to the Bugmy principles, not that the sentencing judge did not take them into account. As a consequence, the Crown submitted that this is an extremely difficult ground of appeal to substantiate. [16] The Crown’s submission was that his Honour considered all of the subjective material that had been tendered before the Court, as well as the objective factors relevant to the offence, and made an intuitive assessment on the basis of all of the material.

    16. R v Baker [2001] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing).

58. The Crown submitted that the finding of the sentencing judge, that the applicant had not taken responsibility for his actions, did not detract from the favourable Bugmy finding made by his Honour.

Ground 3

59. In relation to Ground 3, the Crown has submitted that the Ground should be rejected. The Crown refers to the Remarks of the sentencing judge at [75] to which earlier reference has been made. The reference to “demonstrated remorse” discloses that the applicant’s contention in relation to Ground 3 is, again, that the weight given to the remorse of the applicant was insufficient. The Crown submitted that this was, again, a matter for the sentencing judge’s exercise of discretion.

60. The Crown submitted that the substance and focus of the applicant’s Affidavit demonstrated his perception was that his father was responsible for ruining his life. It was available to his Honour, on that basis, that the applicant had not accepted responsibility for his own actions. The Crown submitted that this Ground should be rejected.

The Purpose and Process of Sentencing

61. The purposes of sentencing, when dealing with offences under NSW legislation, are prescribed by s 3A of the Crimes (Sentencing Procedure) Act. Those purposes include: ensuring that the offender is adequately punished; preventing crime by deterrence of the offender and other persons; protecting the community from the offender; promoting the rehabilitation of the offender; making the offender accountable for his or her actions; denouncing the conduct of the offender; and, recognising the harm done to the victim of the crime and the community.

62. The foregoing purposes, now prescribed by the legislature, are derived from long-standing principles of common law. The High Court described the purposes of criminal punishment as: protection of society; deterrence of the offender, and of others who might be tempted to offend; retribution; and, reform. [17] Those principles were summarised by the High Court as giving rise to a troubling exercise of discretion due, in large measure, to the unavoidable difficulty in giving weight to each of the purposes.

    17. Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14.

63. Further, the High Court described those purposes as overlapping, and that the task of the sentencing judge in determining an appropriate sentence is not one where the judge is able to consider any one of the principles in isolation from the others. Those purposes are guideposts to the appropriate sentence and sometimes they point in different directions. [18]

    18. Ibid.

64. The task is complicated by the fact that a sentencing judge must also use as guideposts the maximum sentence prescribed for the offence and, if there be one, any standard non-parole period.

65. The process of sentencing has been described as a process of “intuitive synthesis”. Intuitive or instinctive synthesis requires a sentencing judge to consider both the objective circumstances of the offence, including the conduct of the offender and her or his moral culpability, together with the subjective circumstances of the offender, although moral culpability may be relevant to subjective circumstances.

66. The task is multifactorial. Despite the matrix of important factors, principle establishes that it is inappropriate to deal with the matter in a staged approach. It is contrary to principle to take a “mathematical approach to sentencing”, in which one increases or decreases the sentence from a predetermined range of sentences or previously fixed sentence. [19]

    19. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [74]-[76] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ) and at [51]-[54] (McHugh J).

67. The approach of “instinctive synthesis” is now the only method by which a sentence may be imposed that reflects all of the purposes of sentencing; the maximum sentence, and any standard non-parole period; and, marries the objective and subjective circumstances of the offence and the offender to achieve the sentencing purposes.

68. More importantly, there is no single correct sentence. Rather, there is a range of sentences that may be proportionate to the offence committed and the subjective circumstances of the offender. An approach other than instinctive synthesis tends to obscure that aspect and assumes that a single correct objective sentence can be derived.

69. Notwithstanding the reference to instinctive or intuitive synthesis, in the process of sentencing, it is still important for there to be a level of transparency in the factors taken into account, the assessment of objective seriousness and the subjective aspects of the offender’s circumstance.

70. The process of sentencing requires a sentencing judge to determine the facts upon which the sentence will be derived. In so doing, facts to be used against an offender must be found beyond reasonable doubt. Contrastingly, those facts relied upon by the offender, and used for his or her benefit, require the civil onus of proof, namely, to be proved on the balance of probabilities. Within those constraints, the fact-finding on sentencing is governed by the same principles as that of any judicial proceeding, subject to any statutory provision or exception.

71. One of those principles is that evidence adduced should be accepted where it, or the deponent, is not the subject of cross-examination, and the evidence remains unchallenged by other evidence adduced in the trial or is not glaringly improbable. The evidence so adduced is unchallenged and uncontradicted.

72. The absence of any challenge or of evidence refuting the undisputed evidence — unless the court is faced with evidence that otherwise undermines the credibility or reliability of the witness providing that evidence or the document in question, or the evidence, is glaringly improbable — leaves the court with the conclusion that the parties have accepted the evidence so adduced. In those circumstances, for a court or factfinder to determine conclusions inconsistent with the unchallenged evidence would be to deny to the party adducing that evidence a proper opportunity to present its case.

73. The practice, sometimes adopted, of treating cautiously statements of remorse by a prisoner facing sentence — provided to a psychiatrist or psychologist, in circumstances where the prisoner does not give evidence — derives from a number of comments and echoes the expression of concern by the Court in Qutami. [20] In that case, Smart AJ referred, in general terms, to the caution that should be exercised, and expressed the view that in many cases, “only very limited weight can be given to such statement”. [21] Smart AJ continued:

“[59]    There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.” [22]

20. Qutami v R (2001) 127 A Crim R 369; [2001] NSWCCA 353.

21. Ibid, at [58].

22. Qutami, supra, at [59] (Smart AJ, with whom Spigelman CJ agreed).

74. The rules of evidence do not apply to proceedings on sentence unless a court so directs. However, the foregoing statement is not a statement of principle as the weight and cogency of evidence is always a matter for individual assessment by the sentencing judge.

75. The practice to provide expert reports in advance is directed so that the Crown has the opportunity to determine whether it should accept or challenge the contents of the reports. If reports (and other evidence) are not challenged, the correct approach is that of Allsop P (as his Honour then was) in Devaney. [23] There, Allsop P said:

“[88]    It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition. Further, the submissions of the applicant about her Honour’s findings concerning his response to medication have force.” [24]

23. Devaney v R [2012] NSWCCA 285.

24. Devaney, supra, at [88] (Allsop P with whom Price J agreed).

76. This Court in Butters [25] made it clear, as do the foregoing comments, that all that is required to engage the consideration of the mitigating factor at s 21A(3)(i), is for the offender to provide evidence of remorse, so as to satisfy the first precondition of the provision. Fullerton J (with whom McClellan CJ at CL and McCallum J agreed) affirmed that “[t]he requirement to provide evidence before remorse can be relied upon does not equate with a requirement that an offender give evidence”. [26] (Emphasis in original.)

    25. Butters v R [2010] NSWCCA 1.

    26. Butters, supra, at [17].

77. In this case, the applicant has given evidence. He provided an Affidavit; was not the subject of cross-examination on any expression of view in that Affidavit; and, there was no evidence to contradict any aspect of the evidence to which the applicant attested.

Consideration

78. Central to the issues before the Court on this appeal — and comprising Grounds 1 and 2 — is the treatment by his Honour of the unchallenged evidence of the applicant, and his mother, as to the degree to which he suffered a deprived background. As the Crown correctly submits, his Honour expressed “significant sympathy” arising from the mother’s Affidavit.

79. His Honour clearly had regard to her Affidavit and described the mother as having “challenges” which would be exacerbated by her son being in custody. He summarised the difficulties with the applicant’s father, to which the mother attested, and described the third marriage; in particular, the third husband’s “twisted way of disciplining” the applicant with physical assaults.

80. As a consequence, the Crown submits that his Honour took into account the issues associated with the circumstances of abuse that were occasioned to the applicant as a child. The impression gained from the Remarks is that his Honour had significant sympathy and admiration for the mother whom the applicant, in his Honour’s view, did not appreciate and that the applicant was blaming everyone (especially his father) except himself.

81. The manner in which his Honour dealt with the issue is, to say the least, ambivalent. His Honour considered that the representations of the applicant about his abusive childhood was a failure to address adequately the efforts of his mother, which was, in my view, neither the intention nor the proper understanding of the applicant’s Affidavit, as read.

82. His Honour also contrasted the effect on the applicant with the progress made by his younger brother who was subject to some of the same abuse. His Honour referred to a “necessary” finding that the applicant “has not taken sufficient responsibility for his own decision to misconduct himself”[27] . The sentencing judge also refers to the treatment of his mother and confined that to the period up until he was four years of age. [28]

    27. Remarks on Sentence, at [41].

    28. Ibid, at [43].

83. Referring to the circumstances of the applicant’s upbringing, his Honour said that screaming and physical abuse was part of everyday life, as he described it. [29] Nevertheless, this was qualified by the suggestion that the normality of that was limited, when his Honour said:

“… once again that must be up until the age of four and then the subsequent one occasion when he was aged twelve.”[30]

29. Ibid, at [44].

30. Ibid.

84. The limitation was repeated in his Honour’s Remarks at [45].

85. If the foregoing limitations were confined to abuse by the applicant’s father, then the comments by his Honour were correct. However, they are not so confined, and his Honour has ignored the evidence of the abuse of his mother’s other partners to which the applicant, his mother and his brother attested, and which evidence was, as already stated, unchallenged and uncontroverted.

84. Consequently, his Honour’s finding that the applicant’s childhood environment of screaming and physical abuse was confined to the age of four, and then one occasion when he was aged 12, was an error of fact, which ignored the evidence of the abuse of his mother’s other partners to which the applicant, his mother and his brother attested, and which evidence was, as already stated, unchallenged and uncontroverted.

85. In my view, the exercise of his Honour’s discretion, in this respect, in applying the principles to which the High Court referred in Bugmy [31] was informed by that error of fact. The principles associated with the Court’s intervention in the exercise of discretion are well rehearsed. They include circumstances where the judge acts upon a wrong principle; allows extraneous or irrelevant matters to guide or affect the judgement; mistakes the facts; and, fails to take account of some material consideration. [32] In this case, the exercise of discretion in allowing for the Bugmy factors was based upon a mistake of fact and entitles, subject to any residual discretion, the Court to intervene.

    31. Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

    32. House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan, JJ); [1936] HCA 40.

86. Consequently, Grounds 1 and 2, which deal with the mistake of facts as to the applicant’s deprived background and the non-acceptance of the unchallenged evidence of the applicant’s mother, the applicant and the applicant’s brother, should be upheld. It is necessary then to deal with Ground 3, which deals with the issue of remorse.

87. Ground 3 depends upon the submission of error in the application of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, dealing with remorse.

88. His Honour determined that the applicant had not satisfied the first precondition for this mitigating factor to be taken into account, considering that, seemingly for two reasons, the applicant had not “accepted responsibility for his actions”.

89. His Honour found, at various parts of his Remarks, that the applicant had not “taken sufficient responsibility” for his own decision to partake in the misconduct; [33] that he had not “accepted responsibility for the precise and complete role that he had in this endeavour”; [34] and that, while the plea of guilty indicates “a measure of remorse” and the applicant has shown “some remorse”, its extent “is difficult to determine even on the balance of probabilities”. [35] Consequently, his Honour was not satisfied that the applicant had “met his obligation” in s 21(3)(i) of the Crimes (Sentencing Procedure) Act. [36]

    33. Remarks on Sentence, at [41].

    34. Remarks on Sentence, at [53].

    35. Remarks on Sentence, at [75].

    36. Ibid.

90. First, the terms of s 21A(3)(i) need to be examined. The provision is in the following terms:

“(3)    Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows --

…

(i)    the remorse shown by the offender for the offence, but only if --

(i)    the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)    the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),”

93. Relevantly, his Honour acknowledged that the second limb of the provision had been satisfied, but that this was negated by his Honour’s conclusion with respect to the first limb. No challenge is made to the conclusion as to the second precondition and it was plainly correct.

94. The first precondition imposes upon an offender the requirement to provide “evidence that he or she has accepted responsibility for his or her actions”. It does not require the Court to accept the evidence, nor does it require evidence that volunteers all of the particulars of the role played by a particular offender or his or her co-offenders. Lastly, it does not require such evidence to be in any particular form, from any particular source, nor to deal with any particular aspect of the criminal conduct.

95. A Court may determine that remorse has not been shown as a consequence of the limited evidence of responsibility that is adduced on behalf of the offender. But, the first precondition for allowing remorse is confined to the provision of evidence that responsibility has been accepted.

96. Thus, a sentencing judge may determine that there is or has been no remorse shown by an offender. In that case, whether or not the preconditions have been satisfied, no allowance would be made for such a factor.

97. However, where, as here, the sentencing judge has determined that the offender has shown remorse, he is required to give the offender the benefit of such a mitigating factor; if the offender has provided evidence of acceptance of the responsibility, and has acknowledged the injury, loss or damage, or made reparation for such.

98. In this case, there was unchallenged and uncontroverted evidence by the offender of his acceptance of responsibility for his actions. His Affidavit, read at the sentencing proceedings, was replete with such acceptance. The Affidavit of the applicant includes the following passages:

“When I think about it now, I don’t know how I am even alive. I was taking drugs every day, drinking alcohol, partying, stealing from my mother and younger brother and was just an overall selfish person.

I treated so many people with disrespect.

I hate to admit it, but I was a drug addict. I was at the stage where I would give drugs to people just to get more drugs for me.

This was my life every day. No girlfriend, no proper job, no strong family, no father, no money or anything just a drug addict living day to day.

I have never had a girlfriend or any sort of relationship. All the girls I met loved to party and take drugs. To me that’s normal. I don’t know what it’s like to meet a girl and settle down like some people.

When I was arrested by police the first time, I was so high on ice I do not remember a thing. I remember lights and spending time at a police station and that’s about it.

I was released and to me that meant to just go on and live my life the way it was. I was wrong and continued to make mistakes that have led me to being in jail today.

I just continued the way I was and lived the same life before getting arrested again.

Since my time in custody I have not touched any drugs and resisted all temptations to seek any drugs. The first month in jail was a struggle. I was depressed, angry, screaming at everyone, itching myself like crazy and having nightmares about my father screaming at me over and over again.

This had to be the hardest month of my life. I was alone again and this time I had no one to blame but myself.

I am so grateful to have someone in my life to still support me after everything I have done to them. The shame and embarrassment I feel cannot be explained in words. I actually feel so pathetic every time my mother visits me because I let her down.

The worst part about it all, is the fact I acted in the same way my father did, without a care for anyone or anything in the world.

Being in jail and seeing so many people suffering has opened my eyes like never before. I keep to myself and just focus on getting out so I can be with my mother and make up for lost time.

I threw away my teenage years and I don’ t know how long it will be before I ever get out of jail again.

l wish I wasn’t so selfish and acted the way an older brother should have. I was supposed to be the man of the house but instead all I did was bring more trouble and hardship upon my family. I haven’t stopped beating myself up about what’s happened for a long time now and don’t know if l can ever forgive myself.”

99. The evidence of the psychologist, also unchallenged and uncontroverted, supported the applicant’s own evidence, and further recited the applicant’s expressions of remorse and his acceptance of responsibility for the offence.

100. As submitted by the Crown, his Honour did take into account some remorse in referring to the applicant’s plea of guilty. [37] However, his Honour refused to consider this in the context of s 23A(3)(i). Further, it is to be acknowledged that the applicant also cooperated with the authorities to present the Court with Agreed Facts in the sentencing proceedings.

     37. Remarks on Sentence, at [75].

101. Having regard to his Honour’s remarks, the sentencing judge refused to take into account the remorse shown by acceptance of responsibility and the acknowledgement of injury, which is self-evident in the passage from the applicant’s Affidavit above. In so doing, his Honour did not take into account a material and mandatory consideration, and Ground 3 should also be upheld.

102. Lastly, the Crown has submitted that the Court on appeal should exercise the discretion, if it be a discretion, not to reduce the sentence because it should not form the opinion that a less severe sentence is warranted in law. [38]

     38. Criminal Appeal Act 1912 (NSW), s 6(3).

103. The Court is required to undertake a fresh, separate and independent sentencing discretion in circumstances where a ground of appeal has been established. Only when the exercise of that discretion results in the formation of an opinion that a less severe sentence is not warranted in law, would the determination in s 6(3) of the Criminal Appeal Act be available.

104. It is, as the Crown submitted, accurate to note that the applicant does not challenge the finding and determination of the objective seriousness of the offending. Nor is the sentence imposed inconsistent with the objective seriousness that has been determined by the sentencing judge. Certainly, the sentence imposed is within range, particularly when one does not have in mind the facts upon which his Honour does not rely below.

105. In determining the sentence to be imposed, the Court has regard to the assessment of objective seriousness by the learned sentencing judge, which assessment has not been the subject of challenge. Further, the Court should take into account all of the findings of fact of his Honour below, save for those which have been the subject of express challenge and comment above.

106. As to the finding of special circumstances, such a finding affects the severity of any non-parole period that has been imposed, but, otherwise, it is difficult to understand how such a finding would impact upon the head sentence. Of course, the imposition of a lenient non-parole period may affect the “severity” of the sentence overall.

107. Over and above the foregoing, given that the Court is now exercising its own discretion to re-sentence, the Court has regard to the Affidavit of the applicant, sworn 7 September 2021, read in these proceedings.

108. The applicant has completed a 10-week course on “Remand and Drug Addiction”. This was while the applicant was at Long Bay Correctional Centre.

109. While at Cessnock Correctional Centre, the applicant has worked on ground maintenance five days a week and has an excellent record in prison. He was Classified as C2 while in Cessnock.

110. The applicant then was moved to Glen Enes Correctional Centre and, at the time of the swearing of the Affidavit, had been there for two months. There, the applicant works four days a week, seven hours a day on timber supply, which provides firewood to a commercial outlet.

111. Notwithstanding that the prison in which the applicant is currently accommodated does not have any drug related courses, the applicant has been drug-free since he entered custody on 22 March 2019. The applicant, of course, suffers the additional restrictions and onerousness consequential upon the steps taken to prevent the spread of COVID in the prison system.

112. The capacity to cease abusing drugs is marginally easier while in prison than it is when in the community, but is a difficult process, which should not be underestimated, and which necessarily speaks volumes for the prospects of rehabilitation of the applicant. Further, his latest Affidavit corroborates the view he has expressed as to his appreciation of the struggles of his mother and her support for him; and, his acceptance of his responsibility for his drug addiction, which, fundamentally, was the cause of his offending and the harm he has occasioned as a result.

113. In my view, the applicant has shown significant remorse and is entitled to have that remorse considered in the setting of any sentence.

114. Further, the applicant has shown a long and almost continuous period in which he was the subject of deprivation and abuse as a child. According to the psychologist report, being the report of Mr Borenstein of 19 September 2019, the applicant relied “almost exclusively” on substance abuse in order to self-medicate (particularly cocaine and ice) from the age of about 20. His childhood was one of violent abuse and abandonment, resulting in the development of an attachment disorder.

115. In his second report, apart from corroborating his earlier findings, Mr Borenstein referred to the necessity for the applicant to engage in “intensive psychological treatment” to address his childhood and adolescent history and his recurrent symptoms of depression. These treatments, as suggested, are necessary in an extended period of parole, which will also be necessary in order for the applicant’s current abstention from drugs to be effective and long-standing.

116. Mr Borenstein also expresses the view that with proper psychological treatment targeting relapse and depression (which results from his deprived childhood) the likelihood of the applicant reoffending is significantly reduced.

117. Notwithstanding all of the foregoing and the subjective factors, the offence is a serious one and requires appropriate denunciation and punishment. Further, personal and general deterrence are significant; but, given the drug rehabilitation effected by the applicant, personal deterrence is not as significant as it would have been at the time that the sentencing judge imposed the initial sentence.

118. For the reasons associated with the need for treatment in the community and the necessity to effect rehabilitation, as well as youth, a longer than prescribed period in which the applicant would be eligible for parole is appropriate and I find special circumstances.

119. I do not accept that no less severe sentence is warranted in law. I take into account, as guideposts, that the maximum sentence for Sequence 9 — dealing with property suspected to be the proceeds of crime, being an amount of $179,400 — is 5 years’ imprisonment; and, the maximum sentence for Sequence 3 — the supply of not less, than a large commercial quantity of a prohibited drug, being 1012.85g of methylamphetamine — is life imprisonment, and that there is a prescribed standard non-parole period of 15 years’ imprisonment. I also make clear that, in my view, the requirements of s 5 of the Crimes (Sentencing Procedure) Act have been satisfied and the appropriate sentence is one of full-time imprisonment.

120. I take account of the Form 1 offences, which I use to inform the degree to which personal deterrence is an appropriate factor in the sentence to be imposed. The applicant is entitled to a reduction in the head sentence of 25% for the utilitarian value of the plea of guilty at the earliest opportunity. I take that reduction into account in fixing the indicative sentences, and, necessarily, the aggregate sentence that I propose.

121. I accept, as is implicit in the sentences imposed by the learned sentencing judge, that the two offences for which the applicant is to be sentenced arise out of the same course of conduct and the level of notional accumulation should not be great.

122. Taking into account the subjective elements to which I have referred, I would propose that for the offence of dealing with property suspected to be the proceeds of crime (Sequence 9), there should be an indicative sentence of 1 year and 3 months, taking into account the discount for plea of guilty. For the offence of knowingly taking part in the supply of a large commercial quantity of methylamphetamine (Sequence 3) — again taking into account the reduction for the plea of guilty and bearing in mind the Form 1 offences — I would propose an indicative sentence of 5 years’ imprisonment and, because a standard non-parole period has been set, an indicative non-parole period of 3 years and 3 months.

123. As a consequence of those indicative sentences, I would impose an aggregate sentence. I take account the reduction of 25% for the early plea of guilty and the Form 1 offences, but not so as to double-count, being a term of imprisonment consisting of a head sentence of 5 years and 3 months, with a non-parole period of 3 years and 6 months.

124. I propose that the Court make the following orders:

1. Grant leave to appeal;

2. Uphold the appeal;

3. Quash the sentence imposed on the applicant, Adrian Cosmo Care, in the District Court on 17 December 2020 and, in lieu thereof, sentence the applicant, Adrian Cosmo Care, to an aggregate sentence of a non-parole period of 3 years and 6 months commencing 22 June 2019 and concluding 21 December 2022, and the remainder of the term of imprisonment, being 1 year and 9 months to conclude on 21 September 2024.

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Endnotes

Decision last updated: 20 May 2022