DG v R (No 1)

[2023] NSWCCA 320

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

DG v R (No 1) [2023] NSWCCA 320

Hearing dates:

1 November 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

Before:

Wilson J: Fagan J: Sweeney J

Decision:

1. Grant leave to appeal against sentence.

2. Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – imprisonment by way of intensive correction order (“ICO”) – where applicant sentenced to term of imprisonment of 3 years and 6 months for drug and weapon offences – whether sentencing judge ought to have considered ICO as alternative to full-time detention – where ICO only available for aggregate term of imprisonment 3 years or less – whether aggregate ought to have been reduced by the period on remand rather than backdated to date of arrest so that aggregate less than 3 years – enlivening availability of an ICO not a relevant consideration in fixing duration and commencement date where a term of over 3 years is found appropriate

CRIME – appeals – appeal against sentence – mitigating factors – whether sufficient weight given to applicant’s uncontested evidence of non-exculpatory duress

Legislation Cited:

Crimes (Sentencing) Procedure Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act 1996 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Eldridge v R [2011 NSWCCA 144

Mandranis v R [2021] NSWCCA 97

R v McHugh (1985) 1 NSWLR 588

R v Zamagias [2002] NSWCCA 17

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Tiknius v R [2011] NSWCCA 215

Zheng v R [2023] NSWCCA 64

Category:

Principal judgment

Parties:

Rex (Respondent)
DG (Applicant)

Representation:

Counsel:
J Styles (Respondent)
A Francis (Applicant)

Solicitors:
Jamieson Criminal Law (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2022/101464

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

6 April 2023

Before:

Judge O’Rourke SC

File Number(s):

2022/101464

HEADNOTE

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

The applicant pleaded guilty to five charges in the Local Court relating to drug and weapons offences. For a period of 11 days in December 2021 and seven days in February 2022 the applicant controlled a mobile phone used to arrange sales of cocaine. Whilst the applicant was in control of the phone a total of 29.5 g of cocaine was delivered by drivers acting at his direction. When the applicant was arrested a search of his residence produced a bag containing two pistols, 635 rounds of ammunition and a pistol magazine.

At his sentence hearing the applicant gave unchallenged affidavit evidence that his purpose in distributing drugs since October 2020 had been to discharge debts owed to criminal associates. After communicating to his associates his desire to cease involvement in drug distribution on 23 February 2022, he was assaulted resulting in hospitalisation for eight days. Upon discharge from hospital the applicant was instructed by his associates to store the weapons. On this basis the sentencing judge took into account that the applicant acted under non-exculpatory duress, as a mitigating factor.

The sentencing judge allowed a substantial discount including for pleas of guilt and imposed an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 4 months to commence from the date of the applicant’s arrest on 8 April 2022. The applicant’s application for leave to appeal included the following proposed grounds:

Ground 1 The sentencing judge erred by failing to make the assessment required by s 66(2) of the Crimes (Sentencing) Procedure Act 1999 (NSW).

Ground 3 The sentencing judge erred in the evaluation of the evidence of non-exculpatory duress.

Relevantly to ground 1, s 7 of the Crimes (Sentencing) Procedure Act provided that “a court that has sentenced an offender to imprisonment … may make an intensive correction order [ICO] directing that the sentence or sentences be served by way of intensive correction in the community”. Section 68(3) provided that in respect of an aggregate sentence an ICO “must not be made if the duration of the term of the aggregate sentence exceeds 3 years”. Section 71(1) provided that an ICO commences on the date on which it is made. Section 66(1) provided that community safety must be the paramount consideration when a sentencing court decides whether to make an ICO and s 66(2) provided that when considering community safety, the court is to assess whether serving the sentence by way of full-time custody or by way of an ICO “is more likely to address the offender’s risk of reoffending”.

The applicant contended that the sentencing judge ought to have considered whether to reduce the term to 2 years and 6 months commencing on the day the sentence was pronounced and give the applicant credit for one year served in custody on remand, instead of backdating the sentence to commence on the day of his arrest. It was submitted that the judge ought then to have considered whether to order under s 7 that this sentence, being less than 3 years, be served by way of an ICO.

The Court held (Wilson, Fagan and Sweeney JJ) granting leave to appeal against sentence but dismissing the appeal:

With respect to ground 1:

a. Whether an offender is to be sentenced to a term of imprisonment and if so for how long are matters to be determined before consideration of whether to order that the sentence be served by way of an ICO and if so on what terms (at [9]-[14]).

R v Zamagias [2002] NSWCCA 17; Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; Zheng v R [2023] NSWCCA 64 applied. Mandranis v R [2021] NSWCCA 97 considered.

b. It is settled sentencing practice that credit for time served is given by backdating the commencement of any sentence imposed, not by shortening the term and commencing it on the day on which it is pronounced (at [17]-[18]).

R v McHugh (1985) 1 NSWLR 588 applied.

c. To fix a term of imprisonment shorter than 3 years and direct that it commence on the date it is pronounced, for the purpose of circumventing s 68(3) of the Crimes (Sentencing) Procedure Act and bringing the aggregate term below the minimum for an ICO, would contravene the principles in Zamagias v R and other cases and would depart from the settled practice in R v McHugh. To adopt such a course for that purpose would constitute taking into account an irrelevant consideration in the exercise of the sentencing discretion (at [16], [19], [22]).

With respect to ground 3: The sentencing judge expressly took into account the unchallenged evidence of non-exculpatory duress. General deterrence remained a significant sentencing consideration in relation to all charges. The sentence had to be of sufficient severity to dissuade others involved in drug and firearms offences from submitting to threatening demands of criminal associates. In those circumstances, the fact that the applicant acted under some degree of duress did not mean that a proper sentence had to be less than that which was imposed (at [32]-[33]).

JUDGMENT

1. THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed by her Honour Judge O’Rourke SC on 6 April 2023. The applicant pleaded guilty to five charges in the Local Court and maintained his pleas in the District Court when he appeared for sentence. The offences and the indicative sentences nominated by her Honour are as follows:

Seq 21: knowingly take part in the supply of a prohibited drug (29.5 g of cocaine), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (maximum penalty 15 years imprisonment) – indicative 12 months imprisonment.

Seq 6: possession of a pistol (Ruger revolver), contrary to s 7(1) of the Firearms Act 1996 (NSW) (maximum 14 years imprisonment with a standard non-parole period of 4 years) – indicative 23 months imprisonment with a non-parole period of 15 months.

Seq 9: acquire ammunition (635 rounds of various calibres) while subject to a prohibition order, contrary to s 74(3) of the Firearms Act (maximum 5 years imprisonment) – indicative nine months imprisonment.

Seq 13: possession of a pistol (Smith and Wesson), contrary to s 7(1) of the Firearms Act – indicative 23 months imprisonment with a non-parole period of 15 months. On a Form 1 relating to seq 13 there were taken into account two offences of possessing a prohibited weapon, in each case a pistol magazine, without a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW).

Seq 15: possess or use a prohibited weapon (magazine), contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) (maximum 14 years imprisonment with a standard non-parole period of 5 years) – indicative 10 months imprisonment with a non-parole period of 6 months.

2. Her Honour imposed an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 4 months, commencing on the date of the applicant’s arrest, 8 April 2022. This judgment is concerned with two of the applicant’s grounds of appeal, as follows:

1   The sentencing judge erred by failing to make the assessment required by s 66(2) of the Crimes (Sentencing) Procedure Act 1999 (NSW).

3   The sentencing judge erred in the evaluation of the evidence of non-exculpatory duress.

3. Ground 2 of the proposed appeal is dealt with in a separate judgment, to be published to the parties simultaneously with this judgment.

Facts of the offending

4. The offence of knowingly take part in the supply of cocaine, seq 21, arose out of the applicant’s use of a mobile phone for taking orders and supplying the drug on several dates in December 2021 and February 2022. Police intercepted SMS text messages sent to and from the phone in question during the period 7 December 2021 to 7 April 2022. The applicant had control of the phone for part of that period, up to 24 February 2022. The phone was used to send out bulk text messages to 467 customers, offering them cocaine. Orders were placed by text messages to the phone, with advice of a delivery address. The phone was used to send a response advising the time of delivery and the description of the delivery vehicle. On 11 separate days in December 2021 and a further seven days in February 2022 the applicant was in control of the phone and caused a total of 29.5 g of cocaine to be delivered by drivers acting at his direction. Others were involved in this enterprise and the order phone was used to facilitate the supply of a total of 521 g of cocaine with an estimated value of over $230,000 over the whole of the period from 7 December 2021 to 7 April 2022.

5. All the other offences were constituted by the applicant being in possession of the weapons and ammunition at his residence in Panania when he was arrested for the drug supply and when the residence was searched. In the course of the search he showed police an Aldi bag under his bed that contained all the items that are the subject of the remaining charges. The serial number of the Ruger revolver in seq 6 was defaced and the weapon was loaded with six rounds of ammunition. The Smith and Wesson pistol in seq 13 was also loaded, with seven rounds in its magazine. The weapons prohibition order, of which the applicant was in breach by virtue of his possession of the ammunition to which seq 9 relates, had been made on 22 March 2020. The applicant said he had not opened the Aldi bag containing these items but one fingerprint from him was located on a plastic bag containing ammunition, inside the Aldi bag.

Ground 1 – failure to assess for intensive correction order

6. The very considerable lenience of the indicative sentences nominated by the sentencing judge is largely attributable to her Honour’s allowance of a substantial discount, well in excess of the 25% to which the applicant was entitled on account of his pleas of guilty. It was submitted to her Honour that an aggregate head sentence of less than 3 years was “open” and that she should order under s 7 of the Crimes (Sentencing) Procedure Act that the sentence be served by way of intensive correction in the community (“ICO”), rather than by way of full-time custody. As an ICO can only take effect from the day it is ordered (s 71(1)) and cannot be backdated to take account of presentence custody, it was submitted to the learned judge that the duration of the sentence and the ICO by which it would be served should be shortened to give credit for almost exactly one year that the applicant had spent in custody on remand. That submission was contained in the following paragraph:

32   As to the length of an ICO, if considered appropriate, whilst it is not backdated [,] in Mandranis v R [2021] NSWCCA 97 at [63] Simpson J (with whom Garling JJ agreed) left open as principled an ICO reduced on account of presentence custody.

7. In this Court the applicant’s written submissions included the following:

5   The aggregate sentence, if reduced on account of nearly twelve months presentence custody, did not render the applicant ineligible for an Intensive Correction Order. This submission was advanced on behalf of the applicant at first instance and her Honour did not have regard to it.

A footnote to this paragraph referred to par 32 of the submissions at first instance, quoted above.

8. The following provisions of the Crimes (Sentencing) Procedure Act are relevant to ground 1:

5 Penalties of imprisonment

(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

7 Intensive correction orders

(1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.

24 Court to take other matters into account

In sentencing an offender, the court must take into account—

(a) any time for which the offender has been held in custody in relation to the offence […]

47 Commencement of sentence

(1) A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed.

(2) A court may direct that a sentence of imprisonment—

(a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or

(b) [..]

(3) In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.

Part 5 Sentencing procedures for intensive correction orders

Division 1 Preliminary

64 Application

This Part applies in circumstances in which a court is considering, or has made, an intensive correction order.

[…]

Division 2 Restrictions on power to make intensive correction orders

66 Community safety and other considerations

(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.

[…]

68 Intensive correction orders not available where imprisonment exceeds limits

[...]

(2) An intensive correction order may be made in respect of an aggregate sentence of imprisonment. However, the order must not be made if the duration of the term of the aggregate sentence exceeds 3 years.

[…]

[…]

Division 3 Term and commencement

70 Term of intensive correction order

Unless sooner revoked, the term of an intensive correction order is the same as the term or terms of imprisonment in respect of which the order is made.

71 Commencement of intensive correction order

(1) An intensive correction order commences on the date on which it is made.

(2) Subsection (1) does not apply to an intensive correction order made in relation to a sentence of imprisonment that is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment the subject of an intensive correction order.

9. In R v Zamagias [2002] NSWCCA 17 at [25]-[29] Howie J (with whom Hodgson JA and Levine J agreed) laid out the sequence in which a sentencing judge is required to determine matters relevant to making a statutory order that a term of imprisonment be served other than in full-time custody. The relevant alternative considered in R v Zamagias was a suspended sentence. Howie J’s observations were addressed, also, to orders of other kinds that are no longer available under the Crimes (Sentencing) Procedure Act. Essentially his Honour said that a sentencing judge must first determine whether there is any alternative to a term of imprisonment in the circumstances of the case. If there is no appropriate alternative, it must be decided how long the term should be, that decision being “made without regard to whether the sentence will be immediately served or the manner in which it is to be served”. His Honour observed that the power to order that a term of imprisonment be suspended or served other than by immediate full-time custody is in each case dependent upon the term first being “imposed”. Hence, the length of “the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed”. His Honour said this:

[28]   Once the term of the sentence has been determined the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative […].

10. In Mandranis v R [2021] NSWCCA 97 Simpson AJA said this at [35]:

[35]   Having regard to the approach taken in Zamagias, (which has repeatedly been endorsed in this Court and applied to the various sentencing options that have been enacted over the years [citations omitted], it would be wrong to start with an intention to make an ICO and then to select the sentence in order to bring it within s 68 and activate s 7. A principled approach requires that the term of the sentence be first determined. If, and only if, that sentence (if an aggregate one) does not exceed 3 years (ie, is 3 years or less) or 2 years (for a single offence) consideration may be given to ordering that it be served by way of an ICO.

11. In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Gageler J (as the Chief Justice then was) made the following observations at [30]:

[30]   The Court of Criminal Appeal of the Supreme Court of New South Wales has held, repeatedly and correctly, that whether an offender is to be sentenced to a term of imprisonment, and (if so) for what term, are questions to be asked and answered within the scheme of the Crimes (Sentencing Procedure) Act before any question can arise as to whether or not to make an ICO and (if so) on what conditions [citing Mandranis v R at [22]- [26]; R v Zamagias and R v Fangaloka [2019] NSWCCA 173 at [44]- [45]].

12. Although his Honour was in the minority concerning the issue of jurisdictional error upon which the appeal turned, the authority of the above statement is not diminished. In the joint judgment of Gordon, Edelman, Steward and Gleeson JJ a statement to similar effect was made, as follows:

[59]   There are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the Sentencing Procedure Act, or confirmed or varied on a sentencing appeal: first, a determination that the threshold in s 5(1), described below, is met; second, determination of the appropriate term of the sentence of imprisonment; and third, where the issue arises, consideration of whether or not to make an ICO [citing R v Zamagias; R v Fangaloka; Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318 at 625/[17]].

13. Jagot J, also in the minority, recognised the same principles:

[205]   Characterising s 66(2) as a jurisdictional pre‑condition to any sentencing function is also difficult to reconcile with long‑established authority in New South Wales, not challenged by the appellant, about the process for making such an order. For example, it has been said that it "would be wrong to start with an intention to make an ICO and then to select the sentence in order to bring it within s 68 and activate s 7. A principled approach requires that the term of the sentence be first determined. If, and only if, that sentence (if an aggregate one) does not exceed 3 years (ie, is 3 years or less) or 2 years (for a single offence) consideration may be given to ordering that it be served by way of an ICO" [Mandranis v R at [35] and [65]]. This accords with the fact that an intensive correction order involves a subsequent and separate consideration within the jurisdiction of the sentencing court.

14. In Zheng v R [2023] NSWCCA 64 at [270]-[272], Gleeson JA (Hamill and Ierace JJ agreeing) again endorsed the sequence of considerations, as follows:

The determination of the appropriate term of the sentence of imprisonment to be imposed is to be made without regard to, and cannot be adjusted to reflect, the manner in which the sentence is to be served.

15. The applicant’s submission quoted at [7] above seeks to circumvent these principles by proposing that the learned sentencing judge should first have determined whether an ICO would be appropriate, having regard to the considerations specified in s 66(2). The applicant submits that, if so satisfied, the judge should have ordered that the sentence to be imposed commence on the day it was pronounced, rather than backdating it to give credit for the year of the applicant’s remand in custody and should have reduced the length of the sentence as an alternative means of giving that credit. The result, it is submitted, would have been an aggregate sentence of under 3 years commencing on 6 April 2023, which the learned judge could have ordered to be served by way of an ICO.

16. Grounds 2 and 3 are independent complaints about her Honour’s exercise of the sentencing discretion, either of which, if upheld, would require consideration of whether any lesser sentence than the aggregate imposed by the judge is warranted in law. Ground 1 is to be evaluated on the assumption that the aggregate sentence of 3 years and 6 months is not otherwise impeachable. On that basis, the applicant’s suggestion that the learned judge should have imposed a shorter sentence commencing on the day it was pronounced for the purpose of bringing the term of imprisonment down to 3 years or less and thereby satisfying the statutory prerequisite in s 68(2) for an ICO, is untenable.

17. It is a settled practice that where a period on remand is referable to the offence for which sentence is to be passed, credit for the time served should be given by backdating pursuant to ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act, not by shortening the term with commencement on the date of sentencing. The seminal decision on that subject is R v McHugh (1985) 1 NSWLR 588, where the Court said this (at 590-591):

There is, however, one aspect in which, in our view, this Court should intervene. That is to adjust the sentence and the non-parole period commencement dates, so as to take into account the period of pre-sentence custody. His Honour expressly said that he took the period of pre-sentence custody into account, and he passed a sentence of some two years less than he regarded as appropriate.

It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be back-dated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing […]. A judge departing from this practice could be expected to indicate his reason for so doing.

In the present case, it was his Honour's intention that the appellant should be held in custody in all for ten years as a head sentence, and for five years as a non-parole period. He deducted two years from these two terms and passed a sentence and specified the non-parole period that has been mentioned. We regard it as appropriate to adjust this order by increasing the sentence and the non-parole period to ten years and five years respectively, but to order that they commence to run on 14 May 1982, thus giving to the appellant the express benefit of the two years and ten days of pre-sentence custody.

18. The practice was reaffirmed in Eldridge v R [2011] NSWCCA 144 at [32]-[34] where Hoeben J (as his Honour then was) cited R v McHugh and a number of intervening decisions that had restated the point. If this practice had been departed from in the present case, as the applicant submits should have occurred, her Honour would have to have imposed a sentence of 2 years and 6 months commencing on 6 April 2023, so that with the year already served on remand the applicant would have been either actually in custody or subject to an order for his imprisonment for a total of 3 years and 6 months, being the duration that the sentencing judge considered warranted. If the learned judge had taken that course she would have failed to formalise, in an order of the Court, her conclusion as to the term that was called for in all the circumstances of the case. That would not merely confound the collection of statistics about sentencing, it would involve a lack of transparency and misrepresentation in the court’s record.

19. As stated in R v McHugh and in the decisions that have followed that case, if the practice of backdating is to be departed from the sentencing judge should clearly state the reasons for doing so. Here, if the course now proposed by the applicant had been adopted, the only reason that could have been given for not fixing the full term of 3 years and 6 months with commencement backdated to the applicant’s arrest would have been that this was intended to circumvent the 3-years-or-less prerequisite in s 68(3), enabling the judge to make an order that imprisonment commencing from the pronouncement of the sentence should be served by way of an ICO. Far from the judge having erred by not engaging in such manipulation, to have done so would have been an impermissible exercise of her Honour’s discretion under ss 24(a) and 47(3). Exercise of the discretion as to commencement date for a purpose of defeating s 68(3) would involve acting upon an irrelevant and impermissible consideration.

20. In Mandranis v R at [55]-[62] Simpson AJA pointed out that if a sentencing judge should impose a term of 3 years or less for an offender who had been on remand pending sentence, the backdating of commencement in accordance with R v McHugh would preclude an ICO, because the ICO can only take effect from the date it is made as provided in s 71. Her Honour contemplated that in such a case there might be an exceptional departure from backdating and that, instead, credit might be given by shortening the term, in order not to deprive the applicant and the court of the ICO alternative to full-time custody. Her Honour’s observations in that respect do not support the applicant’s submissions in the present case, where the appropriate sentence was deemed to be one of more than 3 years and the applicant suggests that a commencement date be adopted to avoid the operation of s 68(3).

21. At [63] Simpson AJA also raised as an additional possibility, which did not arise for determination in that appeal, of whether a sentencing judge might refrain from passing an otherwise appropriate term of more than 3 years and instead fix a shorter term, in lieu of backdating, to commence on the pronouncement of the sentence. Her Honour said this:

[63]   It is also possible that this process might open more sentences to being served by ICOs. For example, a 4 year aggregate sentence, reduced to 3 by reason of 12 months presentence custody, would not be precluded by s 68(2) from being served by way of ICO. Whether that would be a legitimate exercise of the sentencing discretion does not arise in this case and therefore need not (and cannot) be decided.

22. N Adams J expressed doubt upon the point at [67]. Having now to decide the matter, it is our view that where an aggregate sentence of more than 3 years is considered appropriate and the offender has served some presentence custody, it would be an impermissible exercise of the sentencing discretion to reduce the term to 3 years or less, with a commencement date that is not backdated, for the purpose of satisfying s 68(3) and facilitating an order that the shortened sentence be served by way of an ICO.

Ground 3 – non-exculpatory duress

23. In the sentence proceedings the Crown tendered a police fact sheet concerning the arrest of the applicant on 13 October 2020 when he was found to be in possession of 13 small resealable plastic bags containing cocaine and three mobile phones. An affidavit of the applicant was tendered in the sentence proceedings that are the subject of the present appeal, in which he deposed that at the time of that earlier arrest he was indebted in respect of drug transactions and, as result of the police seizure of the mobile phones, he became further indebted because he had “lost the run phone”. The effect of his evidence was that thereafter he was committed to continue distributing drugs in order to pay off money owed to the people with whom he had become involved in that trade.

24. The applicant said that on 23 February 2022 he went to the house of the person who had introduced him to this activity “to give back the phones”, apparently referring to replacement run phones that police had detected him using since 7 December 2021. The applicant said that as a result of stating his desire to cease involvement in drug distribution he was bashed, stabbed and struck with a metal pole, resulting in his hospitalisation for eight days.

25. The applicant tendered records of the Bankstown-Lidcombe Hospital where he was admitted on 24 February 2022 and where he remained until 2 March 2022. According to those records he had sustained a penetrating laceration to his right medial thigh, tenderness and redness of the right ankle, swelling of the left arm with grazed skin over the elbow and a mildly displaced fracture of the metacarpal of his right thumb. The applicant reported to hospital staff that the cause of these injuries was a collision between a dirt bike and a motor vehicle. Notes from a surgical review raised a query as to whether the injury to his right thigh was a stab wound. The notes record that the applicant was evasive when questioned.

26. The applicant’s affidavit contained the following account of what occurred after he was discharged from hospital:

[One] of the guys involved came to my house and told me to hold onto a bag for a couple of weeks. He promised that after that I would be free … . That night I opened the bag to see what was in there and it was the two guns. I closed the bag and hid it. I was in so deep and I just wanted out. I was scared and out of my depth. The whole situation was overwhelming to me. Following the assault I was even more anxious.

27. The applicant told his psychologist, Ms Kam, that the guns were left with him on the evening of the day he was discharged from hospital. He gave oral evidence in the sentence proceedings. He was not challenged as to the assault or as to the circumstances of his receipt of the two handguns. He said that the bag containing them was handed to him by one of the two people who had assaulted him on 24 February 2022 and that he knew those assailants were involved in the supply of large quantities of drugs. In cross-examination the applicant accepted that he believed the firearms “were going to be used for criminal activities and violence”. In written submissions the applicant’s counsel relied upon the agreed facts that he had ceased to control the run phones from 24 February 2022 and that another person took them over from that date. The facts showed that the applicant was still in possession of the guns on 8 April 2022, one month after he had received them, according to his account.

28. The applicant’s counsel submitted to the sentencing judge that s 21A(3)(d) of the Crimes (Sentencing Procedure) Act was engaged, requiring that her Honour take into account in mitigation of sentence that “the offender was acting under duress”. It was submitted that duress was operative in relation to the drug supply offence and all firearms offences. Her Honour was referred to Tiknius v R [2011] NSWCCA 215 at [31]-[54], where Johnson J (Tobias JA and Hall J agreeing) analysed a number of authorities concerning the role that non-exculpatory duress may play in sentencing. Johnson J noted that duress may reduce moral culpability, in particular by showing that neither greed nor any other criminal objective was the motive for the offending. His Honour also noted that if duress is shown to have contributed to the commission of the offence, there may be a reduced likelihood of future offending and a favourable expectation of rehabilitation once the duress has ceased to be operative.

29. Johnson J made the following observations, tending to moderate the extent to which duress may mitigate sentence:

[50]   […] In Taiapa v The Queen [2009] HCA 53; 240 CLR 95 at 106 [31], French CJ, Heydon, Crennan, Kiefel and Bell JJ, accepted as a starting point when considering the reasonableness of a person's actions (concerning the defence of duress), the proposition stated by King CJ in R v Brown (1986) 43 SASR 33 at 40:

"The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation."

[51]   General deterrence has a very substantial role on sentence in cases where non-exculpatory duress is relied upon by the offender: R v Riddell [2009] NSWCCA 96 at [54]-[63]. The grooming and pressuring of persons to become involved in drug importation offences have been said to be "unremarkable features of many importation offences": Anna Le v R at [32]; R v Huynh at [11]. At times, the persons targeted by those recruiting them are said to have submissive or compliant personalities (R v Liu at [34]) or to be naive (Anna Le v R at [32]).

[52]   In R v Roach [2005] VSCA 162, Callaway JA (Ormiston and Charles JJA agreeing) observed at [15]:

"General deterrence is not excluded by threats. On the contrary, general deterrence may provide a counter-threat."

30. In the present case, the learned judge accepted the applicant’s evidence of the circumstances that were said to have constituted duress. In her remarks on sentence the judge said this with respect to taking this sentencing factor into account:

As also noted, it was the non-exculpatory duress, and as stated this has not been challenged in relation to the account that he gave to the police and I have also taken it into account in my assessment of the objective seriousness of the offending and so I do not plan to be double counting – but it has been taken into account.

31. Having quoted the above passage in written submissions to this Court, the applicant’s counsel put the following in support of ground 3:

It is contended that the evidence required a greater degree of analysis in the unusual circumstances of this case.

The submission continued with a quotation from Johnson J’s judgment in Tiknius v R, where his Honour concluded that the findings of the sentencing judge in the decision there under appeal “ought to have translated into a finding of significant reduction in the Applicant’s moral culpability and a corresponding reduction … in the objective seriousness in the Applicant’s offences”.

32. We do not draw such a conclusion in the present case. First with respect to the drug offence in seq 21, it was committed by a series of transactions in December 2021 and February 2022, prior to the assault that resulted in the applicant’s hospitalisation. The duress asserted in relation to the drug offence was said to be pressure to repay debts including a debt that resulted from loss of a run phone in October 2020, 14 months before the first of the offending transactions in seq 21. In relation to that offence, general deterrence remained a significant sentencing consideration. It is incumbent upon a person engaged in ongoing offending of this nature that he or she should cease and, if necessary, seek police intervention and protection, long before the elapse of 14 months from the commencement of duress.

33. The firearms offences were very serious. It is notorious that there is a high incidence of the use of handguns in the commission of violent offences connected with the trade in prohibited drugs. It is important that there should be a strong general deterrent element in sentences imposed for offences of keeping such weapons and ammunition on behalf of persons involved in that trade. The deterrent effect of sentences must be sufficient to discourage others from submitting to demands for storage of weapons, such as the demand that was made to the applicant. Taking into account all sentencing factors that the sentencing judge had under consideration, it is not apparent to the Court that acceptance of the uncontested evidence concerning duress ought to have translated into lesser indicative sentences or a lesser aggregate than as determined by her Honour.

Orders

34. For the above reasons and for the reasons expressed in the Court’s separate judgment concerning ground 2, the orders of the Court are:

1. Grant leave to appeal against sentence.

2. Dismiss the appeal.

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Amendments

29 April 2025 - Correction to numbering

Decision last updated: 29 April 2025