Doyle v R

Case •

[2022] NSWCCA 81

•

13 April 2022

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Doyle v R [2022] NSWCCA 81
Hearing dates: 16 March 2022
Date of orders: 13 April 2022
Decision date: 13 April 2022
Before: Bell CJ at [1]; Bellew J at [42]; Ierace J at [46]
Decision:

1.   Leave to appeal is granted.

2.   Appeal dismissed.

Catchwords:

CRIME — drug offences — supply prohibited drug — commercial quantity — where applicant entered early guilty plea — where sentencing judge applied a 25% discount for early guilty plea — whether sentencing judge erred in applying s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) to make that discount

CRIME — appeals — appeal against sentence — misapplication of principle — where applicant was entitled to a 25% sentencing discount for the utilitarian value of his early guilty plea pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — where sentencing judge applied a 25% sentencing discount to reflect the utilitarian value of the applicant’s guilty plea, in addition to his remorse and willingness to facilitate the course of justice — whether the Act requires separate consideration of the utilitarian value of a guilty plea, an offender’s remorse, and his or her willingness to facilitate the course of justice — whether sentencing judge erred in applying s 25D of the Act

CRIME — appeals — appeal against sentence — re-sentence — supplying a large commercial quantity of a prohibited drug — where the applicant participated in a purported drug transaction facilitated by undercover law enforcement officers — where no drugs in fact existed or were disseminated into the community — where the offence may not have been committed had authorities not facilitated it — weight to be given to hardship caused to family members by an offender’s incarceration

SENTENCING — appeal against sentence — sentence contrary to law — where applicant was entitled to a 25% sentencing discount for the utilitarian value of his early guilty plea pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — where sentencing judge applied a 25% sentencing discount to reflect the utilitarian value of the applicant’s guilty plea, in addition to his remorse and willingness to facilitate the course of justice — whether the Act requires separate consideration of the utilitarian value of a guilty plea, an offender’s remorse, and his or her willingness to facilitate the course of justice — whether sentencing judge erred in applying s 25D of the Act

SENTENCING — plea of guilty — sentencing discount for the utilitarian value of an early plea of guilty pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) — multiple and distinct sentencing considerations which may be engaged by an early plea of guilty — where an early plea of guilty bears utilitarian value — where an early plea of guilty is indicative of remorse and/or willingness to facilitate the course of justice — whether sentencing judge erred in considering the applicant’s remorse and willingness to facilitate the course of justice when applying a sentencing discount pursuant to s 25D of the Act

Legislation Cited:

Crimes Act 1900 (NSW) s 193B(2)

Crimes Act 1914 (Cth) s 16A(2)(g)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3)(i), 22A, 23, 25D, 33

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

Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) sch 1

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) sch 2

Cases Cited:

AB v R [2013] NSWCCA 273

Abousleiman v R [2021] NSWCCA 110

Bae v R [2020] NSWCCA 35

Baden v R [2020] NSWCCA 23

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6

Carter v R [2018] NSWCCA 138

Edwards v R [2021] NSWCCA 57

Greentree v R [2018] NSWCCA 227

House v The King (1936) 55 CLR 499; [1936] HCA 40

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

Lu v R; Huang v R [2021] NSWCCA 68

R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186

R v Girard [2004] NSWCCA 170

R (Cth) v Milne (No 6) [2010] NSWSC 1467

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Tuhakaraina [2016] NSWCCA 81; (2016) 75 MVR 434

R v X [2004] NSWCCA 93

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74

Taysavang v R; Lee v R [2017] NSWCCA 146

Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247

Category:Principal judgment
Parties: Matthew James Doyle (Applicant)
The Crown (Respondent)
Representation:

Counsel:

T Game SC with P Lange (Applicant)
M Kumar with D Beaufils (Respondent)

Solicitors:

One Group Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2019/276254
Publication restriction:

Yes, in accordance with the following orders made at the hearing of this matter.

Pseudonym orders

2. The Crown witnesses in these proceedings who are referred to in the material before the Court under the respective pseudonyms CS1, CS2, Witness C, UCO 547, UCO 645 and UCO 511 (collectively, the Witnesses) are to be referred to by those respective pseudonyms for the purposes of the appeal and any orders or judgment.

Suppression orders

3. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) and based upon the grounds set out in ss 8(1)(a), (b), (c) and (e) contained therein, that there be suppression and no publication of:

(f) any information that reveals or may tend to reveal the contents of Confidential Exhibits D, E and F and Confidential Exhibit 4; and

(g) The description, including but not limited to the identity, of any person as someone who offered or provided assistance to law enforcement authorities.

4. Orders 2 and 3(f) and (g) above are to apply throughout the Commonwealth pursuant to s 11 of the Act.

5. Orders 2 and 3(f) and (g) are to apply until 2092 pursuant to s 12 of the Act.

First access and redaction of the transcript

8. The legal representatives of the Commissioner of Police be granted first access to the transcript of the proceedings, and of any order, judgment or reasons, for the purposes of indicating redactions of that transcript to the Court, so that non-redacted parts of the transcript, or order, judgments and reasons might be published if the Court sees fit.

9. Leave be granted to the Commissioner of Police to make further application to have those redacted parts of the transcript of the proceedings, and of any order, judgment or reasons made the subject of suppression and non-publication orders.
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
4 September 2020
Before:
Hock DCJ
File Number(s):
2019/276254

HEADNOTE

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

On 12 March 2020, Mr Matthew Doyle (the applicant) pleaded guilty in the Local Court to one count of supplying a “large commercial quantity” of a prohibited drug, namely 50kg of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). That offence carries a maximum penalty of life imprisonment, with a standard non-parole period of 15 years. The applicant’s plea of guilty was entered at the earliest opportunity, during committal proceedings.

In the District Court, the applicant was sentenced to eight years’ imprisonment with a non-parole period of five years. In reaching this sentence, the sentencing judge took account of a further offence of knowingly dealing with the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW) (the Form 1 matter).

The sentencing judge applied a 25% discount to the duration of the applicant’s sentence pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), which provides that:

“25D Sentencing discounts for guilty plea for offences dealt with on indictment

(1)    Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.

(2)   Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows—

(a)    a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence”.

The sentencing judge purported to apply this discount “for the utilitarian value of the plea for the criminal justice system and as indicating an acceptance of responsibility and a willingness to facilitate the course of justice”.

The applicant filed an application for leave to appeal on the sole ground that, in applying the discount, the sentencing judge erred in the application of s 25D of the Sentencing Act by impermissibly conflating the “utilitarian value of the plea”, the applicant’s “acceptance of responsibility” and his “willingness to facilitate the course of justice”. It was contended, on the applicant’s behalf, that such conflation either failed to give effect to s 25D, or gave no weight to the applicant’s remorse (per s 22A of the Sentencing Act) and his facilitation of the administration of justice (a mitigating factor per s 21A(3)(i) of the Sentencing Act).

In the event that the applicant came to be resentenced, he relied upon additional evidence said to bear upon the hardship occasioned to him and his family by his incarceration, including more onerous custodial conditions than had been anticipated initially.

The principal issues on appeal were:

  1. whether the sentencing judge erred in the application of s 25D of the Sentencing Act (the s 25D issue); and, if so,

  2. whether the applicant should receive a lesser sentence in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW) (the resentencing exercise).

The Court held (Bell CJ, Bellew and Ierace JJ agreeing), granting leave to appeal, finding that the sentencing discretion was vitiated by an error of law but dismissing the appeal in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW).

As to the s 25D issue

  1. The sentencing judge erred in attributing the discount in part to the applicant’s remorse and his facilitation of the administration of justice. The language of s 25D of the Sentencing Act makes clear that those factors are conceptually distinct from, and require separate treatment to, the utilitarian value of an early guilty plea. The concept of utilitarian value alone entitled the applicant to the discount, with the other two factors properly forming part of the instinctive synthesis of sentencing, pursuant to ss 21A(3)(i) and 22A of the Sentencing Act respectively: [19] (Bell CJ); [42] (Bellew J); [46] (Ierace J).

    Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6; Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247; Bae v R [2020] NSWCCA 35; Lu v R; Huang v R [2021] NSWCCA 68; Baden v R [2020] NSWCCA 23, discussed with approval.

As to the resentencing exercise

  1. The fact that the drugs trafficked by the applicant never existed is not a mitigating factor in sentencing: [30]–[31] (Bell CJ); [42] (Bellew J); [46] (Ierace J).

    Taysavang v R; Lee v R [2017] NSWCCA 146; R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186; AB v R [2013] NSWCCA 273, considered.

  2. A lesser sentence for the applicant was not warranted, notwithstanding the legal error vitiating the sentencing judge’s discretion and taking into account any discount, the objective seriousness of the offence, the Form 1 matter, the applicant’s remorse, the assessment of his prospects of rehabilitation, the hardship occasioned to his family, the onerous conditions of his incarceration and the special circumstances found by the sentencing judge: [40] (Bell CJ); [42] (Bellew J); [46] (Ierace J).

    Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25; R v Girard [2004] NSWCCA 170, applied.

    R (Cth) v Milne (No 6) [2010] NSWSC 1467; R v X [2004] NSWCCA 93; R v Tuhakaraina [2016] NSWCCA 81; (2016) 75 MVR 434; Carter v R [2018] NSWCCA 138; Greentree v R [2018] NSWCCA 227, considered.

Judgment

  1. BELL CJ:

Introduction

On 12 March 2020, Mr Matthew Doyle (the applicant) pleaded guilty in the Local Court to one count of supplying a “large commercial quantity” of a prohibited drug, namely 50 kilograms of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). A “large commercial quantity” of cocaine is defined in Schedule 1 of that Act as being one kilogram. The offence carries a maximum penalty of life imprisonment, and a standard non-parole period of 15 years. The applicant’s guilty plea was entered at the earliest opportunity. [1]

1. Crown Written Submissions [2] (CWS); Remarks on Sentence [194] (ROS).

  1. The applicant was subsequently committed to the District Court for sentence. In sentencing the applicant, the Court was asked to take into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), a further offence of knowingly dealing with the proceeds of crime, in the sum of $520,300 (the Form 1 matter). That offence is contrary to s 193B(2) of the Crimes Act 1900 (NSW) and is punishable by a maximum penalty of 15 years’ imprisonment.

  2. On 4 September 2020, the applicant was sentenced to a term of imprisonment of eight years, commencing on 4 September 2019, with a non-parole period of five years. The sentencing judge indicated that she had afforded the applicant certain reductions to what would otherwise have been the appropriate sentence, by reason of his guilty plea, among other considerations. [2]

    2. ROS [195], [202].

Did the sentencing judge err in her application of s 25D of the Sentencing Act?

  1. It was common ground that, as the applicant had entered a guilty plea in committal proceedings, he was entitled to a 25% sentencing discount pursuant to s 25D(2)(a) of the Sentencing Act. [3] The sole issue raised in this application for leave to appeal is whether the sentencing judge erred in her application of that section.

    3. Applicant’s Written Submissions [9] (AWS); CWS [4].

  2. Section 25D of the Sentencing Act came into effect on 30 April 2018, together with Division 1A of the Act of which it forms part. [4] It relevantly provides as follows:

“25D Sentencing discounts for guilty plea for offences dealt with on indictment

(1)    Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.

(2)    Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows—

(a)    a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence”. (emphasis added)

4. Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) sch 2.

  1. Section 25D is mechanical in the sense that a specified percentage reduction of the sentence that would otherwise have been imposed must be applied in the circumstances specified in the statute. No element of discretion is involved. By way of contrast, prior to the introduction of s 25D, the utilitarian value of an early plea of guilty was one of a number of factors that could be taken into account in the synthetic sentencing exercise.

  2. In her sentencing remarks, which related not only to the applicant but also to two co-offenders, the sentencing judge indicated that she had reduced the applicant’s sentence by 25% by reason of his early guilty plea. She explained this reduction in the following terms: [5]

“ln each case I have taken into account the pleas of guilty which were entered at the earliest opportunity in the Local Court. An lndictment was only presented because of a defect in the Committal papers.

I have reduced the otherwise appropriate sentence in each case by 25% for the utilitarian value of the plea to the criminal justice system and as indicating an acceptance of responsibility and a willingness to facilitate the course of justice.” (emphasis added)

5. ROS [194]–[195].

  1. [Redacted by order of the Court] [6] , [7]

    6. [Redacted by order of the Court].

    7. [Redacted by order of the Court].

  2. On appeal, senior counsel for the applicant contended that in applying the s 25D discount the sentencing judge impermissibly ran together the “utilitarian value of the plea”, the applicant’s “acceptance of responsibility” and his “willingness to facilitate the course of justice”. He contended that in so doing, her Honour must have either failed to give effect to s 25D(2), which mandates a 25% reduction solely for the utilitarian value of a guilty plea entered in the circumstances set out in s 25D(2)(a), or, notwithstanding the language of her sentence remarks reproduced at [7] above, in fact gave no weight to the applicant’s “acceptance of responsibility and … willingness to facilitate the course of justice”.

  3. In support of this submission, reference was made to authorities decided before the introduction of s 25D, which have discussed all three concepts referred to by the sentencing judge, namely: the utilitarian value of a guilty plea; an offender’s remorse; and a willingness to facilitate the course of justice, which may be indicated by a guilty plea: see Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]; R vThomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [114]–[123] (Thomson); Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [11]–[19] (Cameron).

  4. An early guilty plea may or may not involve or be motivated by or manifest remorse. It may be actuated by the mechanical benefit that a provision such as s 25D offers to an offender. As was observed by Spigelman CJ in Thomson at [117], a plea is of itself equivocal with respect to remorse. At [116], the Chief Justice had said, drawing a contrast with utilitarian benefits:

“Remorse is directly concerned with the circumstances of the offender and may have significant implications for other objectives of the sentencing process. First, genuine remorse would indicate that the element of personal deterrence does not need to be given weight in the particular case. Secondly, it indicates that the prospects of rehabilitation are good. These are sentencing matters pertaining to the individual case, not advantages to the administration of criminal justice.”

  1. On the other hand, a plea of guilty may be consistent not only with remorse but, as was observed by Gaudron, Gummow and Callinan JJ in Cameron, it may also and at the same time indicate acceptance of responsibility and a willingness to facilitate the course of justice: at [11]. Their Honours preferred the latter concept to the language of utilitarianism expressed in terms of the saving of the expense to the community of a contested hearing: see at [14]. This was on the basis that, as so expressed, it was apt, at least in some circumstances, to operate in a discriminatory way and thus to undermine the cardinal requirement that a person not be penalised for pleading not guilty.

  2. In Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247 at [111], Simpson J (as her Honour then was) pointed out that:

“Cameron […] has been held to have no application to sentencing in NSW: R v Sharma [2002] NSWCCA 142 ; 54 NSWLR 300. That is because of the particular provisions concerning sentencing contained in the Crimes (Sentencing Procedure) Act 1999. That Act does not apply to NSW judges sentencing under Commonwealth law, as was the case here. Accordingly, Cameron is applicable.”

  1. The applicant also referred to decisions of this Court which drew similar distinctions in the context of sentence reductions for guilty pleas to Commonwealth offences pursuant to s 16A(2)(g) of the Crimes Act 1914 (Cth): see Bae v R [2020] NSWCCA 35 at [57] (Bae); Lu v R; Huang v R [2021] NSWCCA 68 at [28]–[38]. In Bae at [57], Johnson J (with whom Walton J and I agreed) noted that:

“The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.”

  1. The simple but key point made by Mr Game SC, who appeared for the applicant in the current case, was that whilst an offender may show remorse, be willing to facilitate the course of justice and may, by his or her early guilty plea, make a utilitarian contribution to the criminal justice system, each of those matters is not synonymous with the other. An offender may, for example, qualify for a 25% discount because of an early guilty plea under s 25D but completely lack remorse. As I explained, in the context of Commonwealth offending, in Baden v R [2020] NSWCCA 23 at [16]:

“In Cameron, Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused’s ‘willingness to facilitate the course of justice’ which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources. But an early plea may not be motivated by a willingness to facilitate the course of justice such as where, for example, it is actuated simply by an acceptance of the inevitable in the face of an overwhelming Crown case. In such a case, no discount would be justified on the subjective side of the sentencing exercise, but there would be an objective benefit which it has been recognised should attract a discount.”

  1. Following the introduction of s 25D, the utilitarian value of any guilty plea is quantified by that section in respect of state offences. If an offender also shows remorse and/or has manifested a willingness to facilitate the administration of justice, they are considerations to be taken into account quite separately from the utilitarian value of an early guilty plea.

  2. The Sentencing Act now explicitly differentiates between the utilitarian benefit of an early guilty plea (in s 25D) and the power conferred by s 22A “to reduce penalties for facilitating the administration of justice”. An offender’s remorse is specifically referred to as a mitigating factor in s 21A(3)(i).

  3. In my view, the applicant’s criticism of the “rolled up way” in which the sentencing judge dealt with the triple considerations of utilitarian value, remorse and willingness to facilitate the course of justice in that paragraph of her sentencing remarks reproduced at [7] above is well made. The language of s 25D(1) of the Sentencing Act makes it clear that sentencing discounts pursuant to that section are to be made solely “for the utilitarian value of a guilty plea” and no particular or individualised assessment of that utilitarian value is required. Rather, as explained above, the discount is fixed by the statute and operates upon an early guilty plea in the circumstances specified in the statute.

  4. The authorities referred to above establish that an offender’s acceptance of responsibility and willingness to facilitate the course of justice are conceptually distinct from, and require separate treatment to, the utilitarian value of a guilty plea. So much is reinforced by the language of the statute. The sentencing judge therefore erred in attributing the s 25D discount in part to the applicant’s “acceptance of responsibility and… willingness to facilitate the course of justice”. Rather, the utilitarian value of the applicant’s guilty plea alone entitled him to a sentencing discount of 25%, and his acceptance of responsibility and willingness to facilitate the course of justice ought to have formed part of the process of instinctive synthesis entailed in the sentencing process. Remorse was to be taken into account as a mitigating factor pursuant to s 21A(3)(i) of the Sentencing Act, and the degree to which the administration of justice had been facilitated by the defence authorised a “not… unreasonably disproportionate” reduction of the penalty in accordance with s 22A.

  5. For the foregoing reasons, the ground of appeal is made out as the sentencing discretion was vitiated by an error of law: see House v The King (1936) 55 CLR 499; [1936] HCA 40.

Resentencing the applicant

  1. As the sentencing judge fell into error, this Court must now exercise its sentencing discretion for the purpose of determining whether a lesser sentence is warranted in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (Kentwell).

  2. Section 6(3) of the Criminal Appeal Act provides:

“On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

  1. In undertaking this task, the Court should take into account all relevant matters, including any evidence of the applicant’s rehabilitation since he was first sentenced: Kentwell at [43]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].

Facts of the offending

  1. The facts of the offending were the subject of agreement before the sentencing judge. The agreed overview of the facts was as follows: [8]

    8. Appeal Book 49 (AB).

“1.   Between 22 April 2019 and September 2019 Matthew Doyle was in negotiations with a number of persons [redacted]. Those negotiations took place in person in the United States, in Sydney and by the use of encrypted technology.

2.   In the course of those conversations Doyle negotiated the supply to him of 50 kilograms of cocaine. As part of those discussions he indicated that after the initial 50 kilograms he intended to take possession of much more significant quantities for the purpose of supply.

3.   On 26 July 2019 Jared Hart met with UCO [undercover officer] [redacted] and Hart placed in the UCO [redacted]’s car a bag containing $219,500 in cash. That money was a deposit towards the cocaine intended for purchase.

4.   [Redacted]

5.    At about 10:45am on 4 September 2019 Matthew Doyle met with UCO and gave him an additional $300,300 in cash which was to be a further deposit towards the ‘cocaine’. UCO gave Doyle a key. Doyle gave that key to Jared Hart and Raoul Kesby intending that they would collect the ‘cocaine’.

6.    At about 11:15am Jared Hart and Raoul Kesby took from a car two bags each containing 25 kilograms of a substance (total 50 kilograms) they believed to be cocaine. They took those bags to a warehouse in Marrickville. Together with Doyle they opened the bags and immediately took the view the bags did not contain cocaine and Doyle started to send messages to his contacts that the cocaine wasn’t real and that he had been robbed.

7.   [Redacted]

8.   At about 12:20pm Doyle and Kesby were arrested outside the warehouse. A short time later Hart was arrested near his car parked near the warehouse.”

  1. A more detailed account of the facts, drawn from the statement of facts in the sentencing proceedings, was provided by the sentencing judge at [13]–[94] of her Honour’s sentencing remarks which it is necessary and convenient to reproduce:

“13   On 19 April 2019 Matthew Doyle travelled to Los Angeles from Sydney.

14   There he exchanged phone numbers with CS1 and CS2 and they agreed to meet on 23 April 2019.

Mr Doyle's first meeting with CS1 and CS2

15   On 23 April 2019, Mr Doyle, CS1 and CS2 discussed drug trafficking. Mr Doyle asked CS1 whether he had any ‘reach’ in Australia, meaning, whether CS1 had a line for drugs to Australia. CS1 asked Mr Doyle how much he was talking about and Mr Doyle replied ‘tonnes’ and they discussed the potential to import tonnes to Australia on a regular basis. They discussed the price of drugs in Australia.

16   Mr Doyle stated that he hoped that CS1 had a line into Australia and that CS1 needed someone like him to sell it in Australia. Mr Doyle suggested that they could start by sending 300kg to Australia and that they pass 50 at a time and that he could pay up front.

Mr Doyle's second meeting with CS1 and CS2

17   On 25 April 2019 Mr Doyle again met with CS1 and CS2 at the Beverly Hills Hotel.

18   CS2 asked Mr Doyle whether ‘is this something you really want to get into’ and Mr Doyle's reply included the words:

yeah if we can make it work, I mean, as I said to you the other day, I'm not a gangster I'm a businessman. You know I love money, I like making people money and I like making friends. I like longevity in whatever I'm going to do. So unless it's done perfect ... you asked me a question the other day, what can I do? I said I can deliver this. Whatever I say I'll do, I will deliver on.

19   Mr Doyle said that getting the product into Australia would be complicated and that he would prefer to rely on the network of CS1 and CS2 to get the product into Australia, and that he would handle the rest once the product is in Australia. They discussed possible routes for getting the product into Australia, customs checks in Australia and Mr Doyle suggested doing a few ‘dry runs’.

20   Mr Doyle said that he could handle a load that came into Brisbane and that he could handle it ‘anywhere on the land in Australia’.

21   He advised that the customer base in Australia was very picky and that the ‘blow’ in Australia was better than in the United States.

22   Mr Doyle said that a kilogram of cocaine went for $150,000-$160,000 so ‘the money is great’. CS2 asked him how long it would take to move 100kg in Australia and Mr Doyle replied ‘a week to a couple of days. Two, three days. It comes down to quality and price’. Mr Doyle advised that he would need it at $140,000 per kilogram to move it quickly and at that price there would be a day or two turnaround.

23   He said he would invest between $500,000 and $1,000,000 upfront.

24   Mr Doyle and CS2 exchanged Whatsapp contact details. On 27 April 2019 Mr Doyle provided CS2 with his home address in Sydney. A further meeting of 29 April 2019 was arranged.

Mr Doyle's third meeting with CS1 and CS2

25   On 29 April 2019 Mr Doyle again met with CS1 and CS2. He confirmed that he was still willing to participate into any venture to import large quantities of drugs into Australia. They again discussed the logistics involved in importing drugs into Australia including a ‘dry run’ and how payment for the drugs could be made without being detected by law enforcement authorities. Mr Doyle agreed to buy the cocaine from CS1 and CS2 in bulk for an upfront payment equating to $15,000 per kilogram.

26   Between 29 April 2019 and 6 May 2019 Mr Doyle and CS2 exchanged a number of encrypted messages discussing pricing. In that Mr Doyle sent a message indicating that they could ‘start small work the trust and we will start doing 100/200 per week’. He asked whether there were any indications of timeframes ‘just so I can update people’.

Mr Doyle's fourth meeting with CS1 and CS2

27   On 6 May 2019 Mr Doyle met with CS1 and CS2 again in Los Angeles and provided them with CIPHER encrypted phones and provided the passwords. Mr Doyle said that all communication should be undertaken using these encrypted phones and that all communication should be using data messaging and not voice calls.

28   CS1 and CS2 asked Mr Doyle to choose the stamp that he wanted for the drugs and he chose the Hollywood star.

29   Mr Doyle expressed concern that they wanted to start with 300 before the ‘System’ was worked out. CS1 and CS2 indicated that 100 would be for Mr Doyle, not the whole 300. Mr Doyle said even 100 in Australia is very profitable. Mr Doyle stated that he wanted to make sure his side was organised and that he could probably ‘get 200 dropped now’ but wanted to make sure his end was secure. Between 6 May 2019 and 1 July 2019 Mr Doyle and CS2 exchanged a series of messages using the CIPHER encrypted telecommunications devices. They discussed a possible route for trafficking through Greece.

31   On 29 May 2019 CS2 wrote and asked:

I spoke with CS1 about how things are progressing. He wants to know how many K's do you want to start off with? He needs an exact number. He also wants to know how much you plan on investing. He's working on a route through Greece and direct to Australia. He should have it confirmed soon. Do you have your deposit ready? How will you be getting funds to him? You'll be able to view and see the Ks before going to Australia. He needs to know how serious you are as it's getting close to NYC. CS 1 handles the Ks, I handle the funding. Tell me how you plan on making the deposit and transportation fees, so I can set my end up. The price to NYC is 15k, the transportation is another 10 to 12 a K for transportation depending on quantity.

32   Mr Doyle's response included the words:

if it is to invest in the load that is going through Greece to Australia I need more information. I don't just put up money unless I know the ins and outs of the job and normally we run a dummy run first to test everyone knows what they are doing. I can be in LA in 10 days time. Will CS1 be there so we can sit down and discuss properly. As for money we can pay multiple ways. But I first need to understand the job.

33   CS2 asked how much Mr Doyle wanted for Australia and he responded that he needed more information before he moved forward on anything and he wanted to see a dummy run done.

34   CS2 said that Mr Doyle could meet with CS1 to discuss the details. They agreed that Mr Doyle would fly to Los Angeles to meet with CS1. A meeting was arranged for 1 July 2019 in Los Angeles.

Mr Doyle's fifth meeting with CS1 and CS2

35   Mr Doyle met with CS2 and CS1 again in Los Angeles. Mr Doyle spoke about the benefits of the use of encrypted phones as a counter surveillance method. They discussed Mr Doyle's involvement and Mr Doyle offered to be the distributor of the cocaine for them on the ground in Australia.

36   Prices were discussed again and Mr Doyle offered to pay ‘150 a kilo’ to which CS 1 stated that price would not work as they had others in Australia doing it ‘for 190’. Mr Doyle advised that the price fluctuated in Australia and ‘this isn't me saying oh it[‘]s gonna take me two months, I'm saying 150 probably gone in two weeks.’

37   He was asked how much time he needed to move 100kg and he said that it would be two or three weeks. CS1 said he should have product within a month.

38   Between 1 and 7 July 2019 Mr Doyle and CS2 continued to correspond using the CIPHER phones. Mr Doyle was asked whether he wanted ‘the full 300 or stay with 100’ and was told it should arrive in Sydney at the end of July. Mr Doyle responded that he was ‘happy to sell as many as they are happy for me to’ and indicated the deposit would need to be picked up in Sydney.

39   On 23 July 2019 Mr Doyle sent a message that he would be providing a deposit of $220,000. He asked for the token ID (i.e. the password) and where the money needed to be dropped. Mr Doyle ensured that the person he was dropping the money to had a CIPHER encrypted phone and agreed that the money would be dropped on Friday (26 July 2019).

The first money drop: 26 July 2019

41   On 24 July 2019 Witness C, who was a civilian witness that Mr Doyle understood to be arranging the importation of cocaine into Australia, contacted Mr Doyle by CIPHER about arrangements for the first money drop.

42   Mr Doyle agreed to hand over the $220,000 to a representative of Witness C, who Mr Doyle believed was a money launderer. They agreed to meet in Moorebank. Mr Doyle was sent a photograph of a $5 note with its serial number to act as a token for the meeting.

43   On 26 July 2019, Mr Doyle met with a person he believed to be a driver for Witness C - who was in fact an undercover operative (undercover operative A), in the car park of Moorebank sports club.

44   Police were conducting surveillance. Mr Doyle and Jared Hart arrived in separate cars.

45   The undercover operative sent a message to Mr Doyle ‘come to my car’. Mr Hart was seen by police conducting surveillance, holding a phone and a black duffel bag. Mr Hart approached undercover operative A's vehicle and placed the bag in the back seat of the car.

46   The conversation between Mr Hart and undercover operative A was recorded on a listening device. Undercover operative A showed Mr Hart the $5 note containing the pre-arranged 'token', i.e. the serial number attached to that $5 note. Mr Hart provided undercover operative A with the photograph of the serial number from the $5 note given to Mr Doyle by Witness C. The undercover operative asked ‘how much is it’ and Mr Hart responded ‘/ don't know, I'm just dropping it’.

47   Mr Hart and Mr Doyle drove away. Inside the duffel bag was $219,500 in cash.

48   After the money was delivered Mr Doyle messaged CS2 and said that the money drop was done but expressed some concern about the public nature of the location. CS2 sent a message to Mr Doyle saying ‘will update you on the timeline he said to expect 300’ and Mr Doyle responded ‘Ok thank you have a great day’.

Meeting between Mr Doyle and Witness C

49   On 31 July 2019 Mr Doyle met Witness C at the Tilbury hotel in Woolloomooloo. Mr Doyle handed Witness C $500 which was short from the earlier money drop.

50   Witness C discussed with Mr Doyle that he wanted to bring in 300kg of cocaine into Australia and that Mr Doyle was aware it was coming to him in 2-3 weeks. Mr Doyle stated that it was about $50 million worth and that he knew it was coming from Colombia via the US. These words were said in a recorded conversation:

C: ... you want to bring in 300 kilos, you want to bring in 300 kilos of cocaine

DOYLE: Yeah Yeah

C: Of Cocaine

DOYLE: Yeah yeah

51   Mr Doyle stated that it was no problem for him to handle that quantity of cocaine and asked if Witness C wanted $5 million or $10 million per week after he sold the cocaine, he wanted to know ‘ ... what is the best scenario for you?’

52   Mr Doyle stated that he planned to move 50 - 100kg of Cocaine per week and that he could do the whole 300kg by breaking it down into ‘50's’, where two people he works with will take 50kg per week and pay him cash.

53   Mr Doyle stated that he had a house, a spot ready to receive the cocaine once it arrived into Australia.

54   Mr Doyle stated that he used to sell 50kg per week for 6 months, he said that it was product from South Africa.

55   After the meeting was concluded CS2 messaged Mr Doyle to indicate that he should deal with Witness C moving forward.

56   In further messages Witness C told Mr Doyle that he will be contacted by a person who was their ‘Syd guy’, that is the member of their group based in Sydney.

Mr Doyle's meeting with an undercover operative (undercover operative B) on 26 August 2019

57   The ‘Syd guy’ was undercover operative B.

58   Mr Doyle met him at a hotel in Brighton-Le-Sands on 26 August 2019.

59   Undercover operative B asked Mr Doyle what he is expecting and he said ‘three hundred drops’. Undercover operative B said ‘in one hit’ and Mr Doyle responds ‘yeah’. Undercover operative B said he has been informed it was ‘fifty’ and that because Mr Doyle is ‘new’ they wanted to start initially with fifty kilograms.

60   Undercover operative B also told Mr Doyle that because he is ‘new’ he needs to pay a 10% deposit on the cocaine (including the $200,000 Mr Doyle had already paid). Mr Doyle stated that he was not aware of that requirement and he would need to get back to him.

61   Undercover operative B stated that it could possibly be reduced to 5% but they would need more than Mr Doyle had already provided because he was ‘new’. Mr Doyle indicated that he understood.

62   Undercover operative B asked Mr Doyle how much he could take at a time and Mr Doyle said:

Mate, take as much as you would like over time. I meant it's just ... like I said ... I want you guys to be comfortable, you know? If you wanna give me one tonne, that's fine. If you wanna give me twenty that's fine. It doesn't bother me, you know - just we have to see each other more. Which is cool with me you know?

63   Mr Doyle stated for the first week it would take two weeks to sell the drugs but every time after that it would be one week.

64   They made an agreement for the arrangements of the swap of ‘cocaine’ and the remaining deposit. Undercover operative B stated it would be a ‘blind drop’, that he would meet with Mr Doyle beforehand and collect the remaining deposit and that Mr Doyle would be given a car key and an address in exchange.

65   Mr Doyle was told he would have one hour to get to the address and the car and take the drugs from the unattended vehicle. Mr Doyle was told that two people would be watching the car and they would collect the vehicle once the ‘cocaine’ had been collected.

66   Mr Doyle asked undercover operative B whether he had exclusive rights over the cocaine and undercover operative B replied that he did have exclusive rights at the moment and confirmed that they used the Hollywood star symbol to stamp the drugs. Undercover operative B asked Mr Doyle if it was important whether it ‘stays with just you’ and Mr Doyle responded:

I mean Australia's a small place. It's you know, as soon as fifty people trying to start selling everything everyone's end up having them and they're like ... you just get people trying to sell. Undercut people and it becomes a nightmare.

67   Mr Doyle said that if it was an issue of comfort he was not ‘fussed if you want to pass me ten’ to which undercover operative B replied ‘ten is not worth our time’.

68   Mr Doyle asked for a photograph of the product and undercover operative B confirmed that he would send a photograph and wait to hear from Mr Doyle about the further deposit to be paid. Mr Doyle said he had to touch base with overseas to confirm but that ‘the deposit shouldn't be an issue’.

69   On 27 August 2019 Mr Doyle messaged CS2 and asked whether the ‘drop’ could occur without an additional deposit and said that coming up with an additional deposit may be difficult.

70   On 29 August 2019 Mr Doyle sent further messages to undercover operative B asking whether the drop could be done with a 5% deposit (Mr Doyle noting that a 10% deposit was $750,000). Mr Doyle said he could get another $300,000 if that was ‘doable’.

71   In a message that same day Mr Doyle said that he was not aware that another deposit was going to be needed but that he had ‘300k ready to go if that will do’.

2 September 2019

72   Later that day Mr Doyle sent a message which said ‘hey mate just confirmed with OS, I will be passing you 300k as a deposit’.

73   Mr Doyle was captured on CCTV footage at Wanda surf club meeting with Mr Hart.

74   Later that morning Mr Doyle sent a message to undercover operative B confirming that everything was ‘on track for Wednesday’ (4 September 2019). They had discussions about where the drop would occur and Mr Doyle asked if they could avoid the Eastern suburbs as the area was ‘really hot’ with police at the moment. Mr Doyle suggested Cronulla as the location.

75   Members of the NSW police force constructed 50 rectangular block packages each containing about 1kg of an inert substance each wrapped in grey duct tape and vacuum sealed. The blocks each had a ‘Hollywood star’ sign on one side of the block and the blocks were placed in two duffel bags (25kg each).

3 September 2019

76   Police conducting surveillance observed Mr Doyle and Mr Kesby meeting at a café in Vaucluse.

77   Mr Doyle messaged the undercover operative and asked for one of the bricks to be sliced so he could ‘see the shine on the coke’. Undercover operative B responded that it was too risky to do so as the driver was in transit.

4 September 2019

78   Mr Doyle sent a message to undercover operative B with the location of the second money drop. They agreed to meet at a café in Cronulla at 11am.

79   Police were conducting surveillance on all three offenders.

80   At about 9:36am Mr Doyle and Mr Kesby met at a cafe, shortly after joined by Mr Hart.

81   Mr Hart and Mr Kesby left together in Mr Hart's vehicle.

82   Mr Doyle carried a black backpack containing $300,300 into the café in Cronulla where he was joined by undercover operative B. Their conversation was recorded.

83   Mr Doyle gave undercover operative B the backpack containing $300,300. Undercover operative B gave Mr Doyle a car key and advised Mr Doyle of the location of the vehicle containing the cocaine.

84   During the discussion Mr Doyle advised that ‘his guys’ would be in a silver van.

85   Mr Doyle and undercover operative B part ways and Mr Doyle met with Mr Hart and Mr Kesby at about 11:18am at another location after which Mr Doyle drove to an industrial estate in Marrickville.

86   Mr Kesby and Mr Hart drove to the location given by undercover operative B and opened the unattended car using the key undercover operative B had provided. Mr Kesby and Mr Hart approached the vehicle and removed two large black bags each containing 25kg.

87   Mr Kesby and Mr Hart drove to the industrial estate at Marrickville and met with Mr Doyle. The bags were opened and they discovered that what was in the packages was an inert substance.

88   Between 12:08 and 12:11pm Mr Doyle sent a number of messages to undercover operative B stating ‘this is not even coke’, accusing operative B of robbing him and ‘please answer me cause I'm going to get shot over this’. Mr Doyle also sent similar messages about the ‘cocaine’ and a robbery to Witness C and CS2.

The arrest of the offenders

89   At 12:15pm Mr Doyle and Mr Kesby were observed outside the building and Mr Doyle was using his mobile phone.

90   At 12:20pm Mr Doyle and Mr Kesby were placed under arrest. From both Mr Doyle and Mr Kesby police seized CIPHER phones which were locked.

91   At 12:30pm a short distance away Mr Hart was arrested.

92   Both Mr Doyle and Mr Kesby exercised their right to silence. Mr Hart participated in an interview but answered ‘no comment’ in relation to each allegation.

93   A forensic procedure was carried out on all three offenders.

94   A number of search warrants were executed following the arrest of the offenders. At Mr Hart's residence police located two stolen police identification badges (Form 1 matter).” (emphasis in original)

  1. The sentencing judge found that, on the evidence presented, the offence to which the applicant pleaded guilty may not have been committed had the authorities not facilitated it. [9] On the other hand, her Honour noted, correctly, that the evidence in the agreed facts was overwhelmingly that the applicant was very willing to engage once the offer of a transaction was made to him. [10]

    9. ROS [112].

    10. ROS [113].

  2. The objective gravity of the offence was reflected in the fact that the quantity of the drugs contemplated by the transaction was 50 times the threshold for a large commercial quantity of cocaine. The seriousness of the offence is also reflected in the maximum penalty provided for the offence: see [1] above.

  3. The sentencing judge also correctly held that the applicant was the principal participant in the transaction and was motivated by greed. As summarised by the sentencing judge, over a five-month period the applicant’s conduct included: [11]

“●   meeting with and messaging people he believed could supply cocaine to him, both overseas and in Australia,

●   providing the deposit of $219,500 in cash for the drugs on 26 July 2019,

●   providing a further payment of $300,300 in cash on 4 September 2019,

●   initiating counter surveillance measures by giving CS1 and CS2 ‘Cipher’ technology which (to his mind) could not be detected by law enforcement, and

●   recruiting and directing the co-offenders to assist him.”

11. ROS [122].

  1. The sentencing judge assessed the objective gravity of the offence as at the mid-range for an offence under s 25(2) of the Drug Misuse and Trafficking Act. In my opinion, although no drugs were in fact trafficked, the quantity of drugs anticipated to be trafficked by the applicant coupled with the conduct summarised in [28] above more than justified that assessment. Indeed, the degree of objective gravity could reasonably be assessed as being above mid-range. The fact that no drugs were in fact trafficked or distributed — a matter relied upon by the applicant in submissions on appeal — is not necessarily a matter that reduces moral culpability although it is undoubtedly a factor that may be taken into account: Taysavang v R; Lee v R [2017] NSWCCA 146 at [50]–[52], citing R v Achurch (2011) 216 A Crim R 152;[2011] NSWCCA 186 at [97] and AB v R [2013] NSWCCA 273. As Johnson J observed in the latter case at [92]:

“If the drugs had been disseminated into the community, it would have constituted a significant aggravating factor on sentence. However, the absence of an aggravating factor does not translate the matter into a mitigating factor.”

  1. In the present case, because of the nature of the operation, the drugs never existed, still less were disseminated into the community. That, too, is not in my opinion a mitigating factor. To treat it as otherwise would be a matter of serendipity for the applicant.

  2. I also do not accept the applicant’s submission that:

“While the applicant was clearly motivated by the significant profits to be made and had the necessary contacts to realise these profits, the criminality involved was not the same as that involved in an offence committed in the course of a well organised and ongoing drug supply network. The fact that the drugs never existed has a different (and greater) significance in this context.” (emphasis added)

In the present case, the evidence disclosed that the applicant was not pursuing high profits in an amateurish way. Rather, he had numerous meetings with persons he thought would assist him in his criminal and purely commercial pursuit, provided encrypted phones on which to communicate to that end (calculated to prevent interception by law enforcement agencies), furnished substantial quantities of cash, and had in mind ever ambitious future transactions.

  1. On the other hand, the sentencing judge held that the applicant had very good prospects of rehabilitation and could become a contributing and law-abiding member of the community. There was no submission made that this Court, in resentencing the applicant, should depart from that assessment nor from the sentencing judge’s finding that the applicant demonstrated genuine remorse. As to this matter, the sentencing judge stated that: [12]

“[The applicant] has written eloquently in a letter to the Court (Exhibit 5) about his remorse, the many people he has let down and his plans for the future. He is already addressing some of the issues the psychologist has raised by undertaking counselling and educating himself about drug use and addiction. His oral evidence on 3 July 2020 confirmed his shame and determination to not ever again be involved in criminal activity. …

The testimonials from the offender's father and father in law and other members of the community speak with one voice of the [applicant's] shame and remorse. The authors also speak of his positive qualifies and express opinions that he has learnt from this experience. They are confident that he will contribute positively to society on his release.”

12. ROS [158].

  1. Further, in the view of the forensic psychologist, Professor Stephen Woods, the applicant’s risk of re-offending was low. That assessment, too, may be accepted for the purposes of resentencing.

  2. The sentencing judge found that special circumstances existed in the applicant’s case, emphasising his youth and the fact that he would benefit from having a longer period of supervision on parole after an inevitably lengthy period in custody.

  3. There was also evidence, reinforced by further evidence led for the purposes of resentencing and referred to below, about the damaging effect the applicant’s incarceration has had and will have on his infant son, and the effect which that in turn has had and will have on the applicant and his wife. In R (Cth) v Milne (No 6) [2010] NSWSC 1467 at [223], Johnson J observed that adverse consequences on an offender’s family were the “regrettable and almost invariable consequence of … imprisonment”. In R v Girard [2004] NSWCCA 170 at [21] (Girard), Hodgson JA had said:

“It is certainly a matter of concern, and a matter that can be taken into account as one subjective circumstance in assessing the appropriate penalty, that innocent children will be adversely affected by the imprisonment of their parents. However, in the absence of exceptional circumstances, this is not to be taken into account as a specific and particular matter resulting in a substantial reduction or elimination of a sentence of imprisonment.”

See also, for example, R v X [2004] NSWCCA 93 at [24]; R v Tuhakaraina [2016] NSWCCA 81; (2016) 75 MVR 434 at [86]–[88]; Carter v R [2018] NSWCCA 138 at [68]–[70]; Greentree v R [2018] NSWCCA 227 at [69]–[71]. I return to a consideration of this factor below in the context of considering the further evidence led in relation to the impact of the applicant’s incarceration on his young son and wife.

  1. The applicant, who is now aged 33, relied upon the following additional material for the purposes of resentencing:

  1. an affidavit of the applicant, affirmed on 7 March 2022;

  2. an affidavit of Mrs Kelsea Doyle, the applicant’s wife, affirmed on 7 March 2022;

  3. a psychological report of Ms Leah Vircoe, dated 13 February 2022;

  4. a psychological report of Mr Sam Borenstein, dated 30 August 2021; and

  5. a psychological report of Professor Stephen Woods, dated 24 February 2022.

  1. It was submitted and, having reviewed it, I accept that this material supports the following additional findings:

  1. that the applicant’s son, who is currently aged four years, is suffering psychologically as a result of his separation from the applicant, such separation being exacerbated by the effects of the COVID-19 pandemic and the applicant’s placement;

  2. that the applicant’s wife is suffering considerably as a result of the applicant’s incarceration, particularly in the absence of any support from the applicant, [redacted by order of the Court] and her son is experiencing psychological difficulties due to his separation from the applicant;

  3. that the applicant’s anxiety has increased as a result of the knowledge that his son is suffering psychologically, thus making his time in custody more onerous than would otherwise be the case;

  4. that the applicant’s anxiety has increased [redacted by order of the Court], thus making his time in custody more onerous than would otherwise be the case;

  5. that the conditions of the applicant’s incarceration are, as a result of the COVID-19 pandemic, more onerous than had previously been anticipated; and

  6. that the conditions of the applicant’s incarceration are, [redacted by order of the Court], more onerous than had previously been anticipated, [redacted by order of the Court].

  1. [Redacted by order of the Court]

  2. [Redacted by order of the Court]

  3. Taking into account the 25% discount under s 25D of the Sentencing Act, [redacted by order of the Court], the objective seriousness of the offence to which the applicant pleaded guilty, the Form 1 matter, the applicant’s remorse, the assessment of his prospects of rehabilitation, the hardship to his family as amplified by the material summarised at [36]–[37] above (which I take into account in the way contemplated by Hodgson JA in Girard at [21]), together with the onerous conditions of the applicant’s incarceration as also amplified by the further evidence, and the same special circumstances as found by the sentencing judge (see [34] above), I am unable to reach a conclusion that any lesser sentence than that which was originally imposed is appropriate, notwithstanding the legal error which affected the reasoning of the sentencing judge.

  4. For these reasons, whilst leave to appeal should be granted, the appeal must be dismissed.

  5. BELLEW J: I have had the advantage of reading, in draft, the judgment of Bell CJ.

  6. I agree, for the reasons set out by his Honour, that the error for which the applicant contended has been established and that, as a consequence, this Court must re-sentence the applicant in the fresh exercise of the sentencing discretion.

  7. Bell CJ has set out the facts of the offending, the seriousness of which needs no further comment. I have taken into account the entirety of the subjective material and I agree with the findings made by Bell CJ (at [37]) arising from the additional evidence which was relied upon by the applicant before this Court for the purposes of re-sentence. However, it remains the case that there must be reasonable proportionality between the gravity of the offending and any sentence imposed. An offender’s subjective case, however powerful, must not be permitted to result in the imposition of a sentence which fails to reflect that gravity: Edwards v R [2021] NSWCCA 57 at [65]; Abousleiman v R [2021] NSWCCA 110 at [35]. In all of these circumstances I am not of the view that some lesser sentence is warranted in law and should have been passed: Criminal Appeal Act 1912 (NSW) s 6(3).

  8. I agree with the orders proposed by Bell CJ.

  9. IERACE J: I also agree with Bell CJ.

**********

Endnotes

Decision last updated: 20 April 2022

Most Recent Citation
Cases Citing This Decision

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Cases Cited

22

Statutory Material Cited

6

Siganto v the Queen [1998] HCA 74
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Cameron v the Queen [2002] HCA 6