Cooper v The Queen

[2021] NSWCCA 292

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cooper v R [2021] NSWCCA 292

Hearing dates:

29 November 2021

Date of orders:

10 December 2021

Decision date:

10 December 2021

Before:

Bathurst CJ at [1]
Harrison J at [2]
Wilson J at [3]

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIME — appeal against sentence — supply prohibited drug — failure to comply with reporting obligations — question of whether sentencing judge failed to consider mental conditions of applicant — where limited evidence of any mental disorders — question of manifest excess — where applicant in breach of intensive corrections orders and community corrections order at the time of offending — significant criminal history — limited remorse — medium risk of reoffending — poor prospects of rehabilitation — limited utility in comparing other sentences imposed for similar offences — appeal dismissed

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Ahmad v R [2019] NSWCCA 198

Blake v R [2021] NSWCCA 258

Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Hayek v R [2016] NSWCCA 126

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Imbornone v R [2017] NSWCCA 144

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Owen v R [2017] NSWCCA 54

R v Carter [2003] NSWCCA 243

R v Loudon [2020] NSWDC 57

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

R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Peter Cooper (Applicant)
Regina (Respondent)

Representation:

Counsel:
J Brock (Applicant)
A Morris (Respondent)

Solicitors:
Randall Legal (Applicant)
Solicitors for Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/93894

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 March 2021

Before:

McLennan SC DCJ

File Number(s):

2020/93894

Judgment

1. BATHURST CJ: I agree with Wilson J.

2. HARRISON J: I agree with Wilson J.

3. WILSON J: Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) Peter Cooper, the applicant, seeks leave to appeal against an aggregate sentence imposed upon him in the District Court sitting at Lismore on 10 March 2021 by his Honour Judge McLennan SC. The sentence, of 3 years and 6 months imprisonment with a non-parole period (“NPP”) of 2 years, reflected two offences, together with a further two crimes taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as follows.

Count	Offence	Max. Penalty	Indicative Sentence
1	Fail to comply with reporting obligations s 17(1) Child Protection (Offenders Registration) Act 2000 (NSW)	5 years imprisonment	12 months imprisonment
2	Ongoing supply of a prohibited drug s 25A Drug Misuse and Trafficking Act 1985 (NSW) Taking into account: Supply prohibited drug, s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) Goods in Custody s 527C(1)(c) Crimes Act 1900 (NSW)	20 years imprisonment 10 years imprisonment 6 months imprisonment	3 years imprisonment

4. The applicant seeks to advance three grounds, with two of those grounds expressed in the alternative. They are:

“Ground 1A:

The sentencing judge failed to apply principles relating to mental disorders.

Ground 1B:

In the alternative, his Honour’s remarks do not sufficiently explain how the applicant’s mental conditions were considered and there is a real possibility that his Honour failed to apply the correct legal principles.

Ground 2:

The sentence is manifestly excessive in light of his Honour’s findings on objective seriousness and the applicant’s background.”

The Proceedings in the District Court

5. Although the applicant had entered pleas of guilty to the charges against him in the Local Court and was committed for sentence, an indictment was presented against him in the District Court at Lismore on 30 November 2020 and he again entered pleas of guilty to two counts, of failing to comply with reporting obligations and ongoing supply of a prohibited drug.

6. The matter came before the sentencing judge on 10 March 2021, with his Honour imposing sentence ex tempore.

The Crown Case

7. A Statement of Agreed Facts was tendered as part of the Crown case. The summary that follows is drawn from that document.

8. In October 2013 the applicant was convicted of an offence of indecent assault upon a 15 year old girl and was consequentially made a registrable person pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) (“CPOR Act”). His registration was completed in July 2014, a process which included the applicant giving a formal acknowledgment of his reporting obligations under the Act.

9. One of the obligations placed upon registered persons by the Act is an annual reporting process and, in July 2019, the applicant completed annual reporting for that year at Ballina Police Station, giving the required information, including a mobile telephone number. He did not supply details of any access he may have had to the internet.

10. The mobile telephone number the applicant asserted to be his current number was incorrect, he having commenced to use a new mobile service from early March 2019, through which he both made telephone calls and accessed the internet. His offence, reflected by count 1 of the indictment, was in failing to supply details of his new telephone service, or to advise authorities of its capacity to access the internet.

11. The conduct the subject of count 2 of the indictment was detected by police who were investigating the supply of methylamphetamine in the Ballina area. The telephone service that the applicant had failed to disclose to authorities contrary to his reporting obligations was intercepted from 4 March 2020 by police officers acting under a warrant. By that date the applicant was using the service to obtain and supply methylamphetamine to an already established customer base.

12. In the period 6 March 2020 to 24 March 2020 inclusive, the applicant was recorded supplying, offering to supply, or agreeing to supply discrete amounts of methylamphetamine on 19 separate occasions, constituting the offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (“DMT Act”). The methylamphetamine supplied ranged from individual amounts of 0.1 grams to 7 grams, with the intercepted transactions reflecting a total of about 28.14 grams of methylamphetamine supplied in the 18 day period averred by the charge. Other arrangements to supply methylamphetamine were also recorded, but the amounts involved could not be discerned from the recorded communications.

13. The sales were ordinarily for cash, by immediate payment or on credit; and on two recorded occasions as an exchange for goods, being a quantity of cannabis of equivalent value, and a stolen bicycle respectively. In one telephone conversation the applicant advised a customer of his prices, being $400 for a “half ball”, or 1.75 grams; $350 for 1.5 grams, and $300 for 1 gram of methylamphetamine. The applicant met his customers at differing locations, and occasionally enlisted a third person to make the transaction on his behalf.

14. On 9 March 2020 the applicant agreed to supply a “quart” of cannabis for $80. That supply offence, contrary to s 25(1) of the DMT Act, was taken into account when sentence was imposed for the s 25A offence.

15. The police also intercepted conversations in which the applicant arranged to purchase methylamphetamine, ordinarily from a supplier on the Gold Coast, to both use himself and sell to others. He was aware that some of his customers were themselves on-selling the product.

16. On 25 March 2020 a search warrant was executed at the applicant’s Ballina home. Numerous items associated with the business of supplying prohibited drugs were found, including a quantity of resealable plastic bags, scales, and the mobile telephone used to facilitate the transactions.

17. Also found were a number of items believed to have been stolen or otherwise unlawfully obtained, including a quantity of electric tools, a bicycle (other than that received as payment for a methylamphetamine sale), and collectable figurines. The applicant’s possession of these items was reflected by the charge of having goods in custody that was also taken into account on sentence against the ongoing supply offence.

18. The applicant was arrested following the search of his home. When interviewed he denied the allegations, and claimed to support himself through a welfare payment of $800 fortnightly.

19. The Crown also tendered the applicant’s criminal history which, apart from the child sexual offence from 2013 already referred to, contained entries for offences of violence and drug offending amongst other convictions.

20. The applicant first appeared before a criminal court in 1991 for a drink driving offence. That was followed in 1992 with offences of assault and resisting arrest (two counts). In 1993 the offender was sentenced for assault occasioning actual bodily harm (“AOABH”) and four counts of resisting arrest. He was before the Local Court again in 1997 for breaching an apprehended violence order and malicious damage, and fined. Later in that year he was dealt with for traffic offences, and a further count of malicious damage, being made subject to a recognisance for the latter offence. The following year, and in breach of the recognisance, the applicant was convicted of malicious damage, assaulting a police officer, and resisting arrest. Further recognisances were imposed upon him.

21. One month later, in February 1998, and now in breach of four recognisances, the applicant was convicted of common assault and two counts of behaving in an offensive manner. In 1999 the applicant received a community service order for destruction of property, and was called up for breaching the bonds earlier imposed.

22. His constant pattern of offending continued in the new millennium, with convictions for cultivating a prohibited plant in 2000, contravening an apprehended domestic violence order (“ADVO”) in 2001, common assault in 2002 and again in 2004; and, in 2006, for AOABH and contravening an ADVO.

23. Among other more minor offences, the applicant was convicted in 2008 for destruction of property, common assault, contravening an ADVO, and AOABH; for resisting a police officer, and destroying property in 2009; and, in 2010, for another offence of AOABH. In 2011 and again in 2012 he was sentenced for further offences of destroying property, together with driving offences in each year.

24. The indecent assault saw the applicant imprisoned for eight months in 2013.

25. He was again before the court in 2014 for driving whilst disqualified. The following year saw the applicant sentenced for failing to comply with reporting obligations and placed on a bond. He was called up on the bond in 2016 and, also in that year, he was sentenced for possessing a prohibited drug. Another conviction for failing to comply with reporting obligations saw the applicant imprisoned for 15 months with a NPP of a little under 4 months.

26. In 2017 the applicant was fined for another offence of possessing a prohibited drug and, for an offence of common assault, a community corrections order (“CCO”) was imposed. The following year a further CCO was imposed upon the applicant for another offence of failing to comply with reporting obligations and, later in 2018, there was another such conviction, resulting in a further CCO imposed upon the applicant. Both orders were breached, and the applicant was called up in 2019, with intensive correction orders (“ICO”) imposed by way of penalty.

27. Three fresh charges of failing to comply with reporting obligations were brought against the applicant in 2019, with another three ICOs imposed upon him on conviction. The applicant’s custodial history showed that the most recent ICOs were revoked on 21 April 2021, and a term of a little over 3 months imprisonment served by way of the balance of the order.

28. The applicant also had a record for a minor matter from Queensland.

29. At the time of the commission of the offences the applicant was subject to a CCO and a number of ICOs.

30. The facts and sentencing remarks relating to some of the applicant’s earlier crimes, including the 2013 indecent assault, which involved touching a 15 year old girl on the vagina whilst offering to perform oral sex on her, and the more recent CPOR Act offences, were also tendered to the sentencing court.

31. A sentence assessment report (“SAR”) dated 13 May 2019 that had been prepared relevant to the applicant’s appearance in the Local Court for three counts under the CPOR Act in 2019 was before his Honour. It recorded that the applicant had a history of anti-social behaviour, and long-term addictions to methylamphetamine and cannabis, which remained unaddressed. He was reported to be resistant to engage in intervention to address his conduct. His previous response to the supervision of the Community Corrections Service was assessed as “borderline satisfactory”, although he was said to have avoided all attempts to assist him to deal with his addiction and aggression. The applicant was regarded as posing a medium risk of reoffending.

32. A Breach Report prepared on 8 April 2020 that addressed the breaches by the applicant of multiple community based sentencing orders by the commission of the present offences also formed part of the Crown case. On the basis of the applicant’s “lengthy and increasingly serious criminal history” revocation of the orders was recommended, and the orders were subsequently revoked.

33. A second SAR was also available to the sentencing court, the report having been prepared on 1 March 2020 for the sentence hearing listed for 10 March 2020. It noted that the applicant was in receipt of a disability support pension, and had minimal family support or contact. The author of the report thought that the applicant “demonstrated limited attitudinal shift in his pattern of offending behaviour” with problematic substance abuse problems and minimal periods of abstinence. He was assessed as at medium-high risk of reoffending.

34. A forfeiture order was sought by the Crown in an amount of $800.

The Applicant’s Case

35. The applicant did not give evidence.

36. He tendered a report from Kim Dilati, forensic psychologist, dated 25 February 2021, which had been prepared for the purposes of sentence.

37. Ms Dilati assessed the then 47 year old applicant on 25 February 2021 over a video link. She observed him to be a “vague historian”. The history she obtained noted that the applicant was born in Ballina, with no siblings other than a half-sister whom he did not meet until later in life. He had a distant relationship with his mother, who nevertheless provided adequately for him as a child, and a difficult relationship with his father, who had been absent from his childhood years. The applicant had encountered his father when he was aged about 15 years, and again at 37 years, thereafter maintaining irregular contact with him. The applicant reported his father’s reputation in the local area for violence, a reputation of which the applicant was proud. He claimed that his father, who died in July 2020, had introduced him to drugs.

38. The applicant said that his half-sister and father were both drug users, whilst his mother had instances of hospitalisation due to depression.

39. The applicant reported growing up in a “hazardous neighbourhood” where violence and drug use were common. He said he had enjoyed playing with fire as a child, and said he had burned down his mother’s kitchen when he was 4, and other property in fires he started at the ages of 5 and 10 years. He also reported shoplifting as a child. The applicant reported being diagnosed with depression when he was six years old.

40. Despite that background, the applicant had a stable education, completing school in Year 10. His learning had, however, been disrupted by attention problems and restlessness, with some minor truancy.

41. The applicant commenced an apprenticeship on leaving school but left after 6 months following his employer’s bankruptcy. He had held some casual labouring positions from time to time, and had recently been granted the disability support pension, reportedly for depression. He was ambivalent about a return to work.

42. The applicant has three daughters to three different women.

43. The applicant reported a chronic history of polysubstance abuse since his teens, including cannabis, methylamphetamine, and alcohol. He attributed his violent outbursts and aggressiveness to his use of alcohol. The applicant claimed to have had some short periods of abstinence from drugs, including during admissions to rehabilitation facilities, but always relapsed into drug use. He complained that he had not been given enough support to cease drug use.

44. The applicant’s health has suffered as a consequence, including vision impairment in one eye due to his chronic drug abuse. A head injury had left some impairment of memory.

45. The applicant claimed to have suffered from depression for most of his life.

46. On psychometric testing the applicant scored in the normal range for depression, anxiety and stress. He was assessed as posing a high risk for the commission of future offences of violence.

47. Ms Dilati opined, on the basis of the applicant’s self report of symptoms, that the applicant “exhibit[ed] several features” of a Major Depressive Disorder, and a Stimulant Use Disorder. On the basis of the history, and rather intruding on the function of the sentencing judge as to what amounted to mitigating features, she summarised:

“Mr Cooper presented with multiple psychological mitigating factors at the time of the offending conduct. In addition to his stimulant use disorder and symptoms consistent with depression, Mr Cooper has a long-standing history of polysubstance use, recurrent exposure to community violence during childhood, negative role modelling, difficulties learning, parental violence, parental criminality, parental mental health, parental substance use, poor parental management, negative attitudes, risk taking/impulsivity, lack of personal and social support, and stress and poor coping. These historical and social risk factors make an individual vulnerable to offending and suffering from mental health disorders.

At the time of the offending conduct (and years prior), Mr Cooper also suffered from an [sic] methamphetamine dependence. The social and behavioural manifestations of stimulant dependence include a reduced ability to function (despite Mr Cooper stating he functions better during use), displays of erratic behaviour, irritability and anxiety. The chronic psychological effects of stimulant abuse are well known to lead to restlessness, agitation, psychosis, paranoia, suicidality, cognitive deficits, depression, aggression, disinhibited behaviours, impaired decision making, irrational thinking, inability to think consequentially, emotional reactivity, impulsivity and cognitive distortions, especially when combined with the effects of other substances.” [Footnotes omitted]

48. The applicant was not being treated for depression or his substance abuse problems, and told Ms Dilati that he did not believe he needed treatment, managing his symptoms instead by physical training. He said that he was “doing well” in custody

49. Although the applicant told Ms Dilati that he would find it difficult to remain abstinent from drugs and to remove himself from his network of antisocial associates in the community, Ms Dilati thought that the applicant had “taken the first steps” to rehabilitation by using physical exercise to combat the symptoms he reported. She also thought that he was remorseful, although the basis of that opinion is not clear.

48. The applicant read and relied upon an affidavit from his mother, June Cooper. Ms Cooper deposed that the applicant was born after she had separated from his father and he had no contact with his father during his childhood. The applicant had been a restless child and, at age eight, he was prescribed Ritalin for Attention Deficit Hyperactivity Disorder (“ADHD”). The medication caused him to feel depressed, however, and he refused to take it from the age of 14 years. Ms Cooper noticed that the applicant’s behaviour deteriorated.

49. The applicant left school at age 16 and, soon after, Ms Cooper became aware that he was using drugs. Later, in around 2009 or 2012 the applicant entered a residential rehabilitation facility and was abstinent for a time. He met his father, however, in his late thirties, and began to use drugs again.

Submissions to the Sentencing Court

52. The applicant conceded before the sentencing court that the supply offence amounted to “drug dealing to a substantial degree”. It was submitted that the offending could be characterised as street level dealing that was unsophisticated and motivated by a need to maintain the applicant’s own addiction. Little financial gain was evident. The applicant argued that the offence fell at the low end of the range of objective gravity.

53. Relying on the report of Ms Dilati the applicant submitted that the “context” of the motivation to offend was the applicant’s childhood diagnosis of depression, and the ADHA for which he was treated from ages 8 to 14 years. It was contended that these disorders, together with the “diagnosis” of Major Depression and a Stimulant Use Disorder lessened the applicant’s moral culpability for his crimes and thus the need for weight to be placed upon the principle of general deterrence.

54. It was acknowledged that the applicant had offended when subject to a number of ICOs, a feature of aggravation on sentence.

55. The Crown submitted that the applicant was trafficking drugs to a substantial degree for profit, in circumstances where he had well-established networks of both suppliers from whom to obtain his stock, and customers to whom he regularly sold drugs, and conducted his business on a daily basis. The applicant had strategies in place to avoid detection, such as meeting customers at different locations to supply his product, and occasionally using a third person as a runner to make the actual transaction.

56. The CPOR Act offences were submitted to be enduring, in that the applicant had used an unreported telephone with internet access over a period of many months, continuing to use it even after being sentenced in the Local Court for failure to report.

57. It was submitted that the applicant’s record demonstrated a continuing attitude of disobedience amounting to an aggravating feature, and the offences could not be regarded as uncharacteristic. Only a sentence of full time imprisonment could reflect the criminality involved.

The Remarks on Sentence

58. As already noted, his Honour received evidence and heard submissions, before imposing sentence upon the applicant. His remarks were given ex tempore.

59. After referring to the early pleas of guilty and noting that a 25% discount would be applied to the sentences imposed, his Honour set out the facts of the offences.

60. Of the CPOR Act offence the sentencing judge observed that it was an offence of long standing and, whilst not one involving any planning, the offence was nevertheless serious since it constituted a failure to comply with legislation that operated for the protection of the community. Since the applicant had repeatedly breached his obligations in the past and was subject to conditional liberty as a consequence at the time of the further breach, the sentence should reflect the need for specific deterrence.

61. With respect to the ongoing supply offence his Honour noted that it reflected a repetitive course of conduct by a low level supplier of drugs who was himself an addict. The offence was not sophisticated, nor had it brought any significant enrichment to the applicant. He concluded:

“It is not at the lowest level of objective seriousness but nor does it present as being in my mind, in the mid-range of objective seriousness. It falls just below that and that is not an assessment which the Crown seeks to take issue with.”

62. His Honour described the applicant’s upbringing as dysfunctional rather than profoundly disadvantaged but accepted that there was a “clear link” between the applicant’s upbringing, his diagnosis of ADHD, and his drug use. He observed:

“It seems that in part, in an attempt to self-medicate, Mr Cooper has resorted to methamphetamine and has developed a dependence which he has found difficult to shake over time. Indeed, he feels better when he takes methamphetamine which is going to create some problems for him in terms of his rehabilitation.”

63. His Honour referred to Ms Dilati’s report and specifically to the reported history of substance use and attempts at rehabilitation. He said:

“As a general proposition, drug addiction is not a mitigating matter as far as supplying of drugs are concerned; it is explanatory and that is its true role. To the extent that he was self-medicating with methamphetamine because of his ADHD, that is also not a mitigating factor either however, it does put this low level ongoing supply charge into a proper context.”

64. His Honour was not persuaded that the applicant’s ADHD had any impact on his ability to comply with his CPOR Act obligations. He did not accept that either of the conditions referred to by Ms Dilati in her report had any mitigatory effect on the applicant’s moral culpability, but did consider that they provided “important context” as well as pointing to the difficulties the applicant was likely to encounter in his rehabilitation.

65. Despite the applicant’s assessed risk of reoffending, and the fact that his prospects of rehabilitation were not straightforward, his Honour accepted the applicant’s submission that a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act should be made, to support the applicant’s future rehabilitation with a longer period of supervision than that allowed by the statutory ratio.

66. His Honour thought it unlikely that the applicant had sufficient insight to articulate remorse, but accepted such evidence of remorse as there was “at face value”.

67. Sentence was imposed.

The Application to this Court

68. Relying upon Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] the applicant contends by grounds 1A and 1B that the sentencing judge failed to properly assess the relationship between the applicant’s “mental conditions” and his moral culpability for the ongoing supply offence, or to reach any conclusion as to the lesser need for general deterrence because of those conditions, devoting some 22 pages of written submissions to make that argument.

69. The complaint of manifest excess is advanced on the basis that the findings of the sentencing judge as to the gravity of the crimes and the applicant’s subjective case required a lesser sentence than that which was imposed. Statistics together with three sentencing decisions of the District Court are relied upon to demonstrate that the sentence imposed upon the applicant was unfair and unjust.

70. The Crown submitted that his Honour gave careful attention to the evidence concerning the applicant’s mental state, and took it into account as providing the necessary background to the applicant’s addiction and offending. Appropriate weight was given to the issue, and sentence properly ameliorated to reflect it, including by the finding of special circumstances. It is argued that, in the context of an ex tempore judgment, his Honour’s conclusions are able to be discerned, and were both open to him and in accordance with the law.

71. As to the complaint of manifest excess, the Crown points to the objective seriousness of the crimes to argue that the sentence imposed was within range, a conclusion that statistics and comparison with three other sentencing decisions cannot undermine.

Determination

72. The grounds advanced by the applicant fall to be determined by a fair reading of the remarks of the sentencing judge, bearing firmly in mind that this was an ex tempore judgment.

73. There is real value to the criminal justice system in judges dealing expeditiously with matters that come before the courts for sentence. Particularly in the Local and District Courts, where the caseload is high and the lists of outstanding matters are long, that value cannot be overstated.

74. Where a judge can deliver sentencing remarks and impose sentence ex tempore, the offender has the benefit of knowing his or her fate immediately without the additional distress and anxiety of awaiting a reserved judgment. Any victim of crime sees the matter quickly finalised and can begin to put the crime behind him or her. The community benefits through the expeditious administration of justice, and the efficient use of resources. Thus judges should be encouraged to proceed ex tempore wherever possible.

75. Necessarily, a judgment delivered ex tempore will not reflect the same degree of refinement and polish as one delivered weeks or months after the sentence hearing, where time has been available to the sentencing judge to ensure that no grammatical or other errors of expression slip by: R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 at [34] – [35], per Johnson J with whom McClellan CJ at CL and Hammerschlag J agreed. Appellate Courts must be astute to ensure that stylistic issues are not equated to or represented as issues of substance.

76. With that as the background to determining this application, the applicant argues that his Honour failed to apply principles relating to mental disorders to the matter or, if he did, failed to explain how the principles were applied such as to permit his approach to be properly scrutinised.

77. It is useful, in determining grounds 1A and 1B, to commence by looking at the evidence for a “mental disorder” that was before the sentencing judge, as opposed to the characterisation of the evidence that the applicant has advanced. The credible evidence for any current disorder was in fact very limited.

78. Although the applicant told Ms Dilati that he had been diagnosed with childhood depression at age 6 years, that was an assertion made by “a vague historian”, and it was not supported by the affidavit of the applicant’s mother. Ms Cooper’s comment that the applicant became “very depressed” when, as a child aged 8 to 14 years he had taken Ritalin, does not establish that the applicant was diagnosed with any depressive disorder, or had such a disorder, as a child. Nor does the applicant’s assertion that he had depression as an adult, or anything in Ms Dilati’s report, establish that the applicant had a Major Depressive Disorder.

79. The applicant’s assertion that he was in receipt of the Disability Support Benefit (“DSB”) because of “depression” was not supported by any current medical evidence, or any evidence as to the basis upon which the DSB was granted to the applicant. Even if the applicant’s assertion was accepted, it did not amount to evidence of a mental condition or disorder.

80. Ms Dilati did not, despite the applicant’s reference to a diagnosis of depression, at any stage purport to diagnose a Major Depressive Disorder. Presumably, a diagnosis of that nature was beyond the expertise of a psychologist in any event, but regardless of the question of expertise, it was not a diagnosis that Ms Dilati gave.

81. Objective psychometric assessments administered to the applicant by Ms Dilati revealed that the applicant “scored within the Normal range for Depression, Anxiety, Stress” (emphasis in original).

82. On the basis only of the history given to her by the applicant, unsupported by any evidence, she concluded that the applicant “currently exhibits several features of Major Depressive Disorder”. An individual reporting features of a mental disorder, particularly when that individual is facing sentence for a criminal offence, is a very different thing to an individual with a medically diagnosed mental disorder.

83. It was well open to his Honour to discount, largely or completely, those parts of the report of Ms Dilati that were based upon the applicant’s unsworn and untested assertions to her, particularly given that Ms Dilati herself regarded the applicant as vague in the history he gave. Sentencing courts must always be conscious of the dangers in accepting unsworn and untested histories of the nature the applicant gave to Ms Dilati: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58] – [59]; Imbornone v R [2017] NSWCCA 144 at [3], [9], and [57]. That caution extends to an acceptance of opinion based upon nothing more than an unsworn and untested history.

84. Of course, even had there been satisfactory evidence of a current mental condition, it cannot be assumed that there would be some consequential diminution in penalty. Nothing in De La Rosa is authority for mandatory outcomes where there is evidence of mental illness, a point which has been repeatedly made in this Court, most recently in Blake v R [2021] NSWCCA 258, wherein R A Hulme J, with the agreement of Leeming JA and Fullerton J, said:

“Counsel for the applicant referred to the principles relating to sentencing an offender with a mental condition summarised by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. She submitted that the sentencing judge’s description of the applicant’s moral culpability being reduced “somewhat” was not in accordance with the principles or the evidence.

The principles set out by McClellan CJ at CL are not expressed in mandatory or unqualified terms. Simpson J pointed out in Aslan v R [2014] NSWCCA 114 at [33] that the Chief Judge had described in respect of each principle how it may have a certain affect upon the assessment of sentence. Moreover, where a principle does apply, it remains a matter for the sentencing judge to make a discretionary evaluation as to the extent of its significance.

The latter point is illustrated by something said by Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 at 50-51. His Honour described how “general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others”. His Honour concluded the discussion of that principle by saying:

“But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great.””

85. Ms Dilati opined that the applicant had a Substance Use Disorder, an opinion that his Honour accepted in light of the evidence, including documentary material from the Community Corrections Service, as to the applicant’s offences and drug addiction.

86. On the basis of the unsatisfactory evidence that was before the sentencing court, it is apparent that his Honour gave weight to those matters in Ms Dilati’s report that dealt with the applicant’s history of substance abuse, a history supported by both the applicant’s criminal record and the affidavit of his mother, and to the childhood diagnosis of ADHD that Ms Cooper testified to in her affidavit. The sentencing judge was prepared to accept that, when the applicant commenced illicit drug use, he was, at least in part, attempting to deal with his ADHD. His Honour did not accept that the conditions and symptoms described by Ms Dilati mitigated the applicant’s moral culpability “for this offending”, clearly a reference to all of the offences before the court.

87. Since his Honour made no finding that the applicant suffered from a current mental disorder lessening his moral culpability for his crimes, it was not necessary in the context of ex tempore remarks for him to explicitly state that no reduction in the application of the principle of general deterrence would be afforded to the applicant. There was no basis for any diminution in the relevance of general deterrence.

88. As his Honour observed, the evidence of childhood ADHD placed the applicant’s continuing drug addiction into its proper context and provided some explanation for it, but it could not mitigate his ongoing criminality. That was a finding that was well open to him, and which was consistent with authority. In R v Todorovic [2008] NSWCCA 49 this Court rejected an argument that a long-term addiction, in that instance a gambling addiction, mitigated crime. At [57] Hulme J, with whom Grove and Simpson JJ agreed, said:

“Furthermore if gambling, as a “way of controlling (an) emotional state and coping with personal problems by avoidance” in circumstances of “mild depression”, “negative emotional states” and the consequences of dysfunctional relationships, is to be regarded as a reason for leniency, then why should not many of those who seek to ameliorate or blot out their suffering by resort to drugs and then to crime be treated similarly? After all, experience shows that many drug addicts suffer from Attention Deficit, Bipolar, Borderline Personality or other psychological disorders that are said to be causative of, or contributing factors to, their drug addiction.”

89. See also Hayek v R [2016] NSWCCA 126 where a drug addiction that had commenced at a young age and persisted over decades, formally diagnosed by a psychiatrist as a Substance Abuse Disorder, was held not to be a feature that necessarily ameliorated sentence. To the contrary, the applicant’s failure to address his drug use despite the many opportunities given him by the courts over time was regarded as a feature that could have required a greater emphasis on specific deterrence.

90. When the applicant appeared before his Honour he was 48 years of age; his diagnosis of AHDH was decades in the past, and his initial choice to self-medicate for that condition with illicit drugs was similarly far behind him. It is clear from the applicant’s criminal history and the numerous community based sentencing orders that he has repeatedly been given by the courts over many years, with conditions requiring him to undergo drug rehabilitation, that the applicant has failed to take advantage of the opportunities offered to him.

91. It was well open to have regard to the applicant’s drug use, commenced against a background of a diagnosis of ADHD, as placing the commission of the offences in context and taken into account amongst the mix of features relevant to the determination of sentence. More was not required.

92. His Honour was not obliged to find that the applicant had a Major Depressive Disorder, or any other mental disorder, such as to engage the principles in De La Rosa, and the possibility - not the certainty - of some amelioration of sentence, in the ways identified by McClellan CJ at CL at [177]. The evidence was wholly unsatisfactory to that end.

93. Favourably to the applicant, his Honour was prepared to make a finding of special circumstances, reducing the NPP in favour of a longer period of supervision to assist the applicant to rehabilitate, despite the applicant’s prospects of achieving that rehabilitation being, arguably, little more than “a pious hope”: R v Carter [2003] NSWCCA 243, at [19]. That imported a measure of leniency that took into account the applicant’s past ADHD and entrenched addiction.

94. I am not persuaded that his Honour misunderstood the relevant principles, or that he failed to adequately explain his reasons for not applying them favourably to the applicant. On the contrary, the sentencing judge plainly understood the relevant principles, but was not persuaded that they were engaged in any meaningful way. Grounds 1A and 1B cannot be made good and I would dismiss both.

95. The applicant’s final complaint is one of manifest excess. He relies upon the indicative sentence for the ongoing supply offence as pointing to error of that nature in the aggregate sentence of 3 years and 6 months imprisonment with a NPP of 2 years, arguing that the indicated sentence is incongruous with his Honour’s findings.

89. The principles that apply to such a claim need not be restated here. They can be found in the summary given with perfect clarity by R A Hulme J in JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297, at [40]; and in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443].

90. To make good his contention, the applicant relies upon statistics held by the Judicial Commission and three decisions of the District Court, being R v Spiroulias [2020] NSWDC 876, R v Highley [2020] NSWDC 655, and R v Loudon [2020] NSWDC 57, even whilst acknowledging the limitations on the utility of such material.

91. On the basis of the statistics that were provided to the Court, the applicant points out that of a sample size of 391 persons sentenced for ongoing supply, only 43% received a sentence of imprisonment, and only 14% of those persons who were sentenced to imprisonment received a sentence greater than that indicated in this case.

92. Examination of the statistics referred to reveals just how limited such data is in assessing a claim of manifest excess (or inadequacy).

93. The statistics deal with “All offenders” sentenced in the period between 24 September 2018 and 31 December 2020 and show that 43% of the 391 cases received a term of imprisonment. The applicant refers to the percentage of persons who received a term of imprisonment that was more than the 3 years indicated for the applicant, being 14%. If the percentage of offenders who received a sentence which was equal to or greater than the applicant’s indicated sentence is considered however, the figure is very different, being 55.4% of the sample. That is, over half of those imprisoned for an offence of ongoing supply received a sentence that was the same as that indicated for the applicant for the s 25A offence, or greater than it. That statistic does not suggest that the sentence indicated for the applicant was out of step with sentences imposed in other cases.

94. A statistical graph, however read, can say nothing about important features of relevance to the sentencing exercise, such as: the nature of the drug supplied, other than that it was not cannabis; the number of individual supplies reflected by the charge, whether the 3 supplies sufficient to satisfy the elements of the offence, or more or less than the 19 individual supplies made by the applicant; whether other offences were taken into account on sentence; what the level of organisation of the supplier was; whether the supplier worked for him or herself or was simply a runner for a superior; whether the offender was at conditional liberty and, if so, the number of bonds or other orders that were breached by the offending conduct; or anything at all concerning the subjective case, including whether the offender had a criminal record.

95. The limited utility of statistics is or ought to be well understood: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [59]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, at [55]; Owen v R [2017] NSWCCA 54 at [72]; and many other decisions of this Court that make that point.

96. The three sentencing cases relied upon by the applicant are similarly unhelpful to the determination of the question of manifest excess. Three cases decided by an intermediate court cannot establish a range of sentence or demonstrate that it is the correct range. All that can be drawn from them is that no appeal was brought by the Crown or the offender against the sentence that was imposed in the individual circumstances of those cases.

97. R vSpiroulias is relied upon as establishing the upper end of the range of sentence, but it reflects a case where there was a finding of objective gravity falling just below the mid-range. R v Highley is relied upon as a “comparable” case to that of the applicant, but the subjective case was very different, the offender having grown up in circumstances of great disadvantage, and having had a brain injury, and was subject to only one community based sentence at the time of offending, as opposed to the multiple ICOs and a CCO that should have restrained the applicant’s criminal conduct. R v Loudon is advanced as a case at the lowest end of the sentencing range, but again, the subjective case in particular means it is of no assistance in demonstrating one end of the available sentencing range.

98. As a general proposition statistics and selected sentencing decisions do not establish the correct range of sentence for a particular offence. The available sentencing range for any given offence is that provided by legislation. In Ahmad v R [2019] NSWCCA 198, I observed (with the agreement of Basten JA and Wright J), concerning an offence that carried a statutory maximum penalty of 2 years imprisonment, at [47] – [48]:

“The available range of sentence for an offence of this nature commences with a monetary penalty and concludes with a term of 2 years imprisonment. Where within that range any given sentence should fall is a matter determined not by comparison with statistics, but by reference to the facts of the offence, and the circumstances of the offender, and in compliance with sentencing law and principle.

Manifest excess cannot be established by pointing to a statistical range of sentence and arguing that the particular sentence falls at or near the top of that range. After all, within any given range of sentence, someone must be at its higher end. That fact alone cannot establish that the sentencing discretion miscarried in that instance by the imposition of an excessive sentence; any more than can a sentence at the lowest end of the statistical range of itself establish manifest inadequacy.”

106. In the applicant’s case, the sentencing judge had to determine an appropriate sentence for an offence that carries a maximum penalty of 20 years imprisonment, committed by a low-level but very persistent street dealer, who supplied methylamphetamine on at least 19 occasions in an 18 day period, that being more than 6 times the number of supplies, in only just over half the 30 day period, specified by s 25A; whose subjective case was limited; and who was in breach of numerous ICOs and one CCO at the time of offending.

107. Bearing in mind the statutory maximum penalty, and considering the facts of the offence and evidence establishing the subjective case, I am not persuaded that the sentence imposed upon the applicant was in any way unfair or unjust.

108. The complaint of manifest excess has not been made good.

Conclusion

109. Whilst I would grant leave to the applicant to bring the appeal, it should be dismissed.

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Decision last updated: 10 December 2021