Da Silva v The King

[2024] NSWCCA 216

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Da Silva v R [2024] NSWCCA 216

Hearing dates:

18 October 2024

Date of orders:

27 November 2024

Decision date:

27 November 2024

Before:

Stern JA at [1];
Dhanji J at [72];
Faulkner J at [73].

Decision:

(1)   Grant leave to appeal.

(2)   Appeal is allowed.

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

Catchwords:

CRIME – appeals – appeal against sentence – denial of procedural fairness – whether sentencing judge rejected applicant’s evidence of childhood abuse – whether any indication was given to applicant that issue was to be taken

CRIME – appeals – appeal against sentence – denial of procedural fairness – where sentencing judge rejected applicant’s evidence in psychological report

CRIME – appeals – appeal against sentence – re-sentence

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Code (Cth)

Judiciary Act 1903 (Cth)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) NSWLR 146; [2002] NSWCCA 518

Beevers v The Queen [2016] VSCA 271

Crane v R [2024] NSWCCA 87

DC v R [2023] NSWCCA 82

Devaney v R [2012] NSWCCA 285

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Edmonds v R [2022] NSWCCA 103

Henry v R [2009] NSWCCA 69

JA v R [2024] NSWCCA 130

KAB v R [2015] NSWCCA 55

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

McGregor v R [2024] NSWCCA 200

O’Neil-Shaw v The Queen [2010] NSWCCA 42

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318

Category:

Principal judgment

Parties:

Alexandre Da Silva (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Woods (Applicant)
A Chhabra (Respondent)

Solicitors:
Krayem & Co Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2022/00291198

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 588

Date of Decision:

06 December 2023

Before:

Bennett DCJ

File Number(s):

2022/00291198

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 6 December 2023, Bennett DCJ sentenced the applicant to an aggregate term of imprisonment of twelve years and nine months, with a non-parole period of eight years and three months. This sentence related to charges of dealing with proceeds of indictable crime ($100,000 or more) contrary to s 400.4(1) of the Criminal Code (Cth), trafficking in a commercial quantity of a controlled drug contrary to s 302.2(1) of the Criminal Code, and trafficking in a marketable quantity of a controlled drug contrary to s 302.3(1) of the Criminal Code. A further offence of trafficking in a controlled drug contrary to s 302.4(1) of the Criminal Code was also taken into account on sentencing.

Search warrants were executed by the police on 29 September 2022, including in respect of the applicant’s vehicle and residence. In the execution of these warrants, the police identified the following items (among other things):

1. 2,791.1 grams of pure methamphetamine in a black backpack and 2,631.6 grams of pure methamphetamine in the applicant’s vehicle;

2. 282 grams of cocaine in the applicant’s vehicle;

3. 18.7 grams of pure cocaine, 236.2 grams of cannabis and 53.7 grams of heroin in the applicant’s premises and vehicle; and

4. $233,890 in cash, which the applicant had no legitimate reason to be in possession of based on his banking and tax records.

At the sentencing hearing, the applicant relied upon affidavits from himself and his mother as well as a report from a psychologist, Tim Watson-Munro (Watson-Munro report). None of this evidence was challenged by the Crown.

In his affidavit, the applicant said that he was sexually assaulted in or around 2007 (when aged 10) on many occasions over a few months by a family friend. He did not report this to anyone. He said that as a result he had experienced flashbacks, nightmares and post-traumatic stress disorder. He said that he began using drugs at the age of 14 to assist in dealing with the trauma and his recreational use of drugs quickly became an addiction. The Watson-Munro report said that “[t]his event also offers some explanation as to his early foray into substance use”.

The sentencing judge accepted that the applicant had a long running history of misuse of drugs. In respect of the history of childhood abuse, in the absence of further material to support the assertion, the sentencing judge attributed it little, if any, weight. During the course of the sentencing hearing, the sentencing judge noted during an exchange with Senior Counsel for the applicant that the sentencing judgment would be advanced on the premise that the sexual abuse occurred, however his Honour queried the nexus between this abuse and the offending.

In his report, Mr Watson-Munro described the applicant as a “psychologically troubled man” and said that “appropriate testing confirms a moderate and recurring Depressive Disorder with a broad spectrum of symptoms”. This diagnosis was relied upon by the applicant in his written submissions at the sentencing hearing. However, in the sentencing judgment, the sentencing judge ultimately rejected Mr Watson-Munro’s diagnosis.

The issues raised by the applicant’s grounds of appeal were:

(i)    Whether there was a denial of procedural fairness in that the sentencing judge indicated that he would proceed on a particular factual basis (being that the applicant had been subject to sexual assaults whilst he was a child) but in the event sentenced the applicant on a different basis without affording him an opportunity to be heard on the matter (ground 1);

1. Whether the sentencing judge erred in denying procedural fairness to the applicant by rejecting the psychologist’s diagnoses without notice to the applicant (ground 1A); and

2. Whether the sentencing judge erred in failing to take into account a relevant consideration, namely the applicant’s experience of childhood trauma (ground 2).

The Court (Stern JA, Dhanji and Faulkner JJ agreeing) granting leave to appeal and allowing the appeal:

As to issue (i) and (iii)

1. To the extent that the applicant sought to rely upon his history of sexual abuse on sentence, it was for the applicant to satisfy the sentencing judge of the matters on which he relied on the balance of probabilities. This included the fact of the abuse having occurred, and, the abuse being relevant to the offending, that the abuse played a role, in some material way, in his offending conduct: [18].

   The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54; DC v R [2023] NSWCCA 82; KAB v R [2015] NSWCCA 55, cited.

2. The evidence that the applicant had been sexually abused as a child was taken into account by the sentencing judge but was ultimately given little or no weight. The primary judge had signalled during the hearing that the question of “nexus” was one which troubled him, and the applicant was able to, and did, make submissions as to the causative significance of his history of sexual abuse: [42]. In the circumstances, there was no procedural unfairness.

   Edmonds v R [2022] NSWCCA 103; Beevers v The Queen [2016] VSCA 271, distinguished.

3. The sentencing judge did not fail to have regard to a material consideration. The sentencing judge had regard to the applicant’s history of sexual abuse, but ultimately accorded that history little or no weight in the sentencing process: [43].

As to issue (ii)

1. Mr Watson-Munro’s diagnosis flowed from his clinical impression of the applicant and the outcome of assessment using the Beck Depression Inventory. In the absence of any challenge to Mr Watson-Munro’s opinion whether by submission or cross-examination, it was procedurally unfair for the primary judge to have rejected Mr Watson-Munro’s diagnosis without giving any indication to the applicant that he proposed to do so: [55]-[56].

   Devaney v R [2012] NSWCCA 285; O’Neil-Shaw v The Queen [2010] NSWCCA 42, cited.

2. Although there is no suggestion in the Watson-Munro report that the applicant’s depression had caused his offending, the applicant’s depressive disorder, which was ongoing at the time of Mr Watson-Munro’s interview of him, may have the consequence that a sentence may weigh more heavily on the applicant. That was a matter for the sentencing judge to consider, having regard to the opinion set out by Mr Watson-Munro: [58].

   Crane v R [2024] NSWCCA 87, cited.

As to resentencing

1. The Court inferred that suffering from the applicant’s depressive disorder would cause a custodial sentence to weigh more heavily than would otherwise be the case: [67].

2. Having adopted a discount of 25% for the applicant’s guilty pleas, the Court imposed an aggregate sentence, to commence on 29 September 2022, of ten years and nine months for the three offences (to expire on 28 June 2033), with a non-parole period of six years and ten months (to expire on 28 July 2029): [69].

JUDGMENT

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

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

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

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

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

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

1. there was a denial of procedural fairness in that the sentencing judge indicated that he would proceed on a particular factual basis but in the event sentenced the applicant on a different basis without affording him an opportunity to be heard on the matter (ground 1). The complaint underlying ground 1 related to the sentencing judge’s treatment of unchallenged evidence that the applicant had been subject to sexual assaults whilst he was a child;

(1A)   the sentencing judge erred in denying procedural fairness to the applicant by rejecting the psychologist’s diagnoses without notice to the applicant (ground 1A); and

1. the sentencing judge erred in failing to take into account a relevant consideration, namely the applicant’s experience of childhood trauma (ground 2). The childhood trauma relied upon was the sexual assaults the subject of ground 1.

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

Background

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

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

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

“a. [$]136,550 cash in bundles… Forensic examination of the cash revealed a DNA profile which almost certainly belonged to the [applicant];

b. green Woolworths bag containing a pure weight of 1,549.9g methamphetamine (80.3% purity)... Forensic examination revealed the [applicant’s] DNA as a contributor;

c. black and yellow Rebel sports bag containing a pure weight of 1,081.6 g of methamphetamine (80.3% purity)… Forensic examination of the cash revealed a DNA profile which almost certainly belonged to the [applicant];

d. various clip-seal bags alleged to be utilised as dealer bags, containing a calculated pure weight of 0.1g methamphetamine with a 77.9% purity…;

e. Christian Louboutin brown paper bag containing multiple clip seal bags with a pure weight of 123 g of cocaine (18.1% purity) mixed in with caffeine and levamisole... Forensic examination of the bag revealed a DNA profile which almost certainly belonged to the [applicant];

f. pink lunchbox containing a pure weight of 159 g of cocaine (56.8% purity) mixed in with levamisole... Forensic examination of the item revealed a DNA profile which almost certainly belonged to the [applicant];

g. Coles plastic bag containing a pure weight of 53.7 g of heroin (63.5% purity) mixed in with beta-U10 and etizolam…;

h. a ‘Turtle Beach’ headphone box containing multiple plastic bags with traces of cocaine and methamphetamine;

i. [t]wo clip-seal bags containing traces of cocaine. Forensic examination revealed the [applicant’s] DNA; and

j. a cardboard box containing a high visibility shirt with traces of cocaine and methamphetamine.

k. [o]ne $5 note and one $10 note consistent with being tokens used as receipts in drug or money handovers.”

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

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

“a. [$]95,860 cash located in plastic bags contained within a black Nike backpack, situated on top of a baby’s change table… Forensic examination of the plastic bag containing the cash revealed the [applicant’s] fingerprints;

b. two plastic bags of cocaine located within the Nike backpack containing the money, on the baby change table as follows:

i. a total net weight of 27.1 g of cocaine, caffeine and levamisole with a 22.2% purity, giving 6.0 g of pure cocaine…; and

ii. a total net weight of 27.5 g of cocaine, caffeine and levamisole with a 27.1% purity, giving 7.4g of pure cocaine...

c. a clip seal bag located in the [applicant’s] bedroom containing 27.5g of cocaine, caffeine and levamisole, with cocaine at 19.5% purity, giving a calculated pure weight of 5.3g of cocaine…;

d. a calculated net weight of 33.5 g loose cannabis located in the lounge room …;

e. various jars with a calculated net weight of 18.5 g of cannabis, located in the lounge room… Forensic examination of the jars revealed the [applicant’s] fingerprints.

f. two heat sealed plastic bags containing a calculated net weight of 184.2 g cannabis, located in the [applicant’s] bedroom…;

g. two mobile communications devices, one of which was found earlier in the [applicant’s] satchel bag both of which are encrypted;

h. a yellow ‘SKINS’ cardboard box with names and amounts written on it (used as a drug ledger), containing traces of cocaine, caffeine, levamisole and benzocaine;

i. a black ‘Nike’ backpack and Woolworths plastic bag containing traces of methamphetamine, cocaine, THC, caffeine, levamisole and benzocaine where items inside the backpack contained the [applicant’s] DNA;

j. one clip seal bag marked ‘$69K’;

k. three measuring jugs containing traces of cocaine, methamphetamine and THC;

I. two electronic scales; and

m. three $5 notes in a cigarette packet and one $5 in the bedroom consistent with being tokens.”

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

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

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

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

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

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

Grounds 1 and 2

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

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

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

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

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

17. Mr Watson-Munro said in his report:

“During the course of my discussions with [the applicant], he revealed that he had been raped at about the age of 10 years by a family friend. This matter was not reported to the police and he had no treatment, which I suspect led in turn to the establishment of his long-term struggles with substance use and his variable mood.”

22. Mr Watson-Munro also said in his report:

“The offence was not revealed at that time and in this setting, he has struggled with his emotions since then until quite recently, when he decided to reveal what had happened to him. This event also offers some explanation as to his early foray into substance use. [The applicant] stated that because of that event and the subsequent breakdown of his parent’s marriage, he has struggled with his emotions for many years now.”

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

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

“The [applicant] has a history of childhood abuse. Mr Watson Munro is of the opinion that the [applicant’s] sexual abuse as a child offers some explanation into his early foray into substance abuse”.

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

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

“… to the extent that he’s of an opinion about the veracity of assertions, I don’t attribute great weight to that. That’s not his role”.

27. Senior Counsel for the applicant at trial responded:

“No, your Honour. Understood”.

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

“HIS HONOUR: Because it’s important to, at least, have some appreciation of this in light of what is advanced by Watson-Munro, as the essence of where I find he’s - where he is and breaking it down, he had this experience, allegedly, at age ten - which is not quantified or qualified other than the bare assertion that it occurred - leading to a personality which was attracted to drug use, which, ultimately, led to a debt level that led to his participation in these crimes, but there’s a bit of a quantum leap, to put it in quite, you know—

…

HIS HONOUR: It’s just that it seems to me to be connection. The characterisation of his misconduct, if it’s significant criminality - and I’ll use that, there’s a - not an imprecise term - but the explanation that’s promulgated, firstly, by your client in his affidavit, then by Watson-Munro and his extrapolation - there’s a bit of a jump, depending upon what one finds regarding the characterisation of his misconduct. You understand my-

[JOHNSTON]: I do understand that, and - and I think we need to be clear about what your Honour’s looking at. This is a matter where what’s advanced on behalf of the [applicant] is that there was a foray into drug use, to use the words of Watson-Munro, as a result of this underlying abuse as a child. That was never treated and it was unresolved, and he was self-medicated in that regard. That’s picked up over time. It’s, as I understand what’s advanced, is that drug use led, eventually, to a debt. It wasn’t a substantial debt by comparison to what was, ultimately, in his possession at the time of the arrest in this matter, but it was, nonetheless, a debt that was owed because of drug use that caused him to commence the offending in the sense of converted him into selling drugs to assist with his own drug use and to repay that drug debt.

HIS HONOUR: I suppose, regardless of the debt level, the fact that he’s embarked upon a far more extensive array of misconduct simply accommodates whatever the debt might have been, even at a low level.

[JOHNSTON]: Certainly, but that’s - I think it’s advanced, primarily, to understand how he came to be where he is.

HIS HONOUR: It couldn’t be said that this misconduct was to defray a modest drug debt, but one can understand how he’s evolved into it, if I accept what you’re saying.

[JOHNSTON]: It’s how he got into it, and it’s certainly evolved. What would be said, though, is that it’s not- though he’s clearly in possession of a substantial amount of money at the time of his arrest, it doesn’t preclude the fact that he was still a user, and somebody that was still - had come into it because of that earlier abuse and still had that addiction that was fuelling part of the reason he was involved, but obviously it had grown beyond that. That’s, I think, where you’d have to look at it…”

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

“… it hasn’t been advanced as a mental health condition that significantly mitigates his moral culpability, but the abuse and the depression is consistent with a person that has work that needs to be done in the future.”

30. The following exchange then occurred:

“HIS HONOR: Just dealing with the abuse. The abuse is really – all I have before me is evidence of the fact of the alleged abuse, without any further qualification or quantification of the event of sequelae, but he was not required for cross-examination upon the point, so we can take comfort in the fact that that has to be the premise upon which I advance in the judgment. The question, though arises – as we’ve discussed already – what was the nexus, and the nexus can only be, too, emotional difficulty that led to self-medication, but going way beyond what might have been. If he had been moving a bit of material for modest return just to keep his own use going, it would have been a completely different picture to the one we’ve got.

[JOHNSTON]: No, that’s true, but it explains how he –

HIS HONOUR: It explains how he got started. Yes.

[JOHNSTON]: - got started, and also the continued use – impact – on his poor judgment, but I can’t advance it that that higher -.”

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

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

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

“There is nothing before me to indicate that that has ever found the light of day other than in this report and in the [applicant’s] affidavit. In circumstances where it is said that this person, not named or even identified beyond the barest description, had access to him and his family, there is nothing in the material before me that supports the proposition other than the bare assertion that it occurred, nothing to indicate what steps were taken to protect himself or to seek protection from the misconduct, there is no material upon which one might assess the veracity of the claim that had occurred, the extent of the misconduct or over what period of time and how frequently.”

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

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

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

“the past sexual assault… is said to offer some explanation for his early foray into substance use and that he has struggled with emotions for many years because of that and the breakdown of his parent’s marriage.”

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

“The history of childhood abuse, in the absence of further material to support that assertion, I attribute little, if any, weight, particularly considering the presentation of the [applicant] to others, apart from Mr Watson-Munro, who have not detected in anything they have provided any such concerns.”

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

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

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

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

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

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

44. Grounds 1 and 2 should be rejected.

Ground 1A

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

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

“… a complex clinical and developmental history, characterised by longstanding symptoms of depression, anxiety, low self-esteem and an overarching Substance Use Disorder”.

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

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

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

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

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

“He needs psychological intervention. It’s his first time in custody. He’s relatively young, and if there’s any prospect for rehabilitation it can’t be destroyed by crushing [him] with the long custodial component in what is going to be a substantial sentence because of the nature of the misconduct.”

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

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

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

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

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

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

“The sophistication of the operation, including the ledger and what was contained on the phone, is difficult to reject in the circumstances notwithstanding the asserted claim of paranoia, anxiety, and drug use escalation up to the point of self-medicating.”

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

“He was administered the Beck Depression Inventory. It is not explained to me how that was done by way of a telehealth consultation. The psychologist offers the proposition that the testing confirmed his clinical impressions of a depressive disorder moderately occurring and then ultimately the opinion he has given reflecting the various commentaries to which I have referred.”

54. At J[136], the sentencing judge concluded:

“I have already commented upon the report from the psychologist. I do not need to amplify that. I have considered his age, character, and antecedents. I do not accept the diagnoses offered by the psychologist for the reasons I have earlier given.”

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

“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… (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.” (references omitted)

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

“Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course.”

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

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

59. Ground 1A should be upheld.

Resentence

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

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

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

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

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

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

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

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

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

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

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

1. four years and three months for Sequence 1;

2. ten years and six months for Sequence 2; and

3. four years and six months for Sequence 7.

Conclusion

71. Accordingly, I propose the following orders:

1. Grant leave to appeal.

2. Appeal is allowed.

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

72. DHANJI J: I agree with Stern JA.

73. FAULKNER J: I agree with Stern JA.

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Amendments

27 November 2024 - 27 November 2024 - Update to headnote.

Decision last updated: 27 November 2024