MN (a pseudonym) v The The Queen

[2022] NSWCCA 78

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MN (a pseudonym) v R [2022] NSWCCA 78

Hearing dates:

1 April 2022

Decision date:

13 April 2022

Before:

Simpson AJA at [1]; Adamson J at [2]; Bellew J at [34]

Decision:

Refuse leave to appeal

Catchwords:

CRIME — Appeals — Appeal against sentence — whether sentencing judge failed properly to take into account applicant’s mental disorders

CRIME — Appeals — Appeal against sentence — new evidence — whether to admit supplementary expert report

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases Cited:

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

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Hemsley [2004] NSWCCA 228

Wang v R [2021] NSWCCA 282

Category:

Principal judgment

Parties:

MN (a pseudonym) (Applicant)
Regina (Respondent)

Representation:

Counsel:
S Odgers SC / S Pararajasingham (Applicant)
E Wilkins SC (Respondent)

Solicitors:
J Sutton Associates (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/41475

Publication restriction:

Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7)

 Decision under appeal 

Court or tribunal:

District Court of NSW

Date of Decision:

23 October 2020

Before:

Bright DCJ

File Number(s):

2018/41475

Judgment

1. SIMPSON AJA: I agree with Adamson J.

2. ADAMSON J: MN (the applicant) seeks leave to appeal against the sentence imposed on him by Bright SC DCJ on 23 October 2020 of a total term of 5 years and 6 months commencing on 15 June 2019 and expiring on 14 December 2024, with a non-parole period of 3 years and 8 months, commencing on 15 June 2019 and expiring on 14 February 2023.

3. The sentence was imposed following the applicant’s plea of guilty to one charge of supplying not less than a large commercial quantity of a prohibited drug, 3,4-Methylenedioxyamphetamine (MDA).

4. The applicant asked her Honour, when imposing the sentence for the offence of which he had been convicted, following his plea of guilty, to take into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Form 1), the following four offences with which the applicant had been charged:

1. supply commercial quantity of MDA (143.6g) on 8 June 2017;

2. supply commercial quantity of MDA (166.48g) on 21 June 2017;

3. supply indictable quantity of MDA (71.9g) on 12 July 2017; and

4. supply commercial quantity of MDA (144.84g) on 26 July 2017.

5. The applicant seeks leave to appeal against his sentence on the following grounds:

1.   “The sentencing judge failed properly to take into account the applicant’s mental disorders.”

2.   “A miscarriage of justice resulted from the absence in the sentencing proceedings of a supplementary report by Professor [Greenberg].”

The sentence proceedings

6. The hearing of the sentence proceedings commenced on 6 March 2020 at which time evidence was tendered by both parties, except in relation to the assistance provided by the applicant. The proceedings were adjourned to 7 April 2020 because of the sensitive nature of information relating to the assistance provided by the applicant. It would appear that a further adjournment was granted until 4 September 2020. On that day, evidence was called relating to that assistance. The parties then made submissions and, as her Honour had other commitments that day, the matter was stood over for sentence on 23 October 2020.

7. The Crown tendered a statement of agreed facts; formal documents from the committal; the Form 1; and the applicant’s criminal and custodial histories which indicated that he had no prior criminal history.

8. The applicant tendered two reports of Professor Greenberg, together with other medical material; reports of rehabilitation conducted in custody; urine drug analysis test results (which established that he had not tested positive for drug use in custody); documentation showing the applicant’s regular attendance at Alcoholics Anonymous and Narcotics Anonymous meetings and courses undertaken on relapse prevention; as well as character references from friends and associates and the applicant’s son. The applicant also tendered an affidavit which he had sworn setting out his background, family life, business career, assets, rehabilitation and future plans. He was not cross-examined.

9. When recording the history which the applicant had given to him, Professor Greenberg noted:

“He states that at the time he understood the consequences of his actions but he was ‘in the party scene’ and he thought he was ‘only’ (supplying) ‘one guy’. He claims he knew it was illegal but at that time, his view was different. He claims that he ‘wasn’t in (his) right mind’ and his judgement was impaired. He states that when you [are] smoking cocaine ‘you have your own reality’.”

10. In conclusion, Professor Greenberg said, of present relevance:

“His mental health at the time of the offending behaviour

I am of the opinion, based largely on [MN]’s self-report and limited provided documentation, he likely had a Cocaine (Stimulant) Use Disorder, Cannabis Use Disorder, Depressive Disorder, Gambling Disorder and undiagnosed Post-Traumatic Stress Disorder.

Is there a link between [MN]'s mental health and the offending? In addressing this, to what extent (if any) did his mental health and/or any disability: which contributed to the offending behaviour; and/or affected his ability to appreciate the seriousness; and/or consequences of his actions; and/or affected/impaired his judgement?

… He reports numerous stressors in year 2014, when he and his wife became estranged and he begins to regularly snort or smoke cocaine. He subsequently develop[ed] a severe cocaine addiction associated with nasal septal perforations as a result of excessive cocaine usage. He reports that he and his wife subsequently separated and he moved out of home. He states he continued to party and abuse cocaine as part of his chosen lifestyle. He states that his gambling and use of illicit substances led to his business decline and he accumulate[ed] a large drug debt of $280,000. Nevertheless, he still retained ownership of five investment properties and his house. He reports at the time of the offending, his judgement was impaired as a result of his cocaine addiction.

In my opinion, based largely on his self-report and limited provided documentation, there was a link between [MN]’s mental health and his offending. At the time of the offending, [MN] had a cocaine addiction, a depression and pre-existing PTSD symptoms. His cocaine addiction, depression and PTSD were mental health factors associated with his offending behaviour.

Any significant experiences in his past that may have led to ongoing mental health issues, which may be connected to or explain his drug addiction?

[MN]’s persistent undiagnosed post-traumatic stress disorder symptoms, stressful business lifestyle, long work hours, his father’s illness, his father-in-law's death, his marital problems, his association with party friends and acquaintances, his gambling problems, his depressive symptomatology, amongst other factors, all likely contributed to him developing a severe cocaine addiction. He states his judgement with regards to his offending behaviours was impaired at that time and in his view, he states, when you [are] smoking cocaine ‘you have your own reality’.”

[Emphasis in original.]

11. In his affidavit, the applicant said, of present relevance:

“REMORSE

45.   I accept responsibility for my actions and regret my behaviour, which has caused much grief and sadness for my friends and family.

46.    I accept that I was also damaging other people’s lives by being part of the drug supply trade. Through the programs I have been taking part in I have gained insight into the damage that drugs do to people’s lives. I understand why these charges are considered so serious and I am ashamed to be called a drug dealer or supplier.

47.    I cannot go back and fix what I have done but I am working hard to ensure I am the best person I can be. I am confident that if I keep doing what I’ve been doing and remain focused on living a healthy life I will never find myself in this position again.

48.    Although I wish I could remain in the community to serve my sentence and continue with my rehabilitation programs, I know I must return to [gaol] and I have prepared myself for this. I hope I can utilise the tools that I have learnt in my rehabilitation programs to ensure I continue to move forward steering clear of drugs.”

12. Written submissions were provided to the sentencing judge by the Crown and on behalf of the applicant.

13. The applicant’s submissions were arranged under headings. Of present relevance the submissions said under the heading “Objective seriousness”:

“While considerably over the threshold for large commercial quantity, the offence does not involve the much larger amounts that are seen and can be seen as slightly below mid-range for the type of offending. All the offending involves sales to one undercover police officer.”

14. Under the heading, “Mental illness”, the applicant’s legal representative extracted passages from Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [53] to the effect that mental illness may have the effect of reducing the weight given to general deterrence. He also extracted a passage from [54] of Muldrock to the effect that a causal connection between mental illness and the offending conduct could lessen an offender’s moral culpability. He also cited R v Hemsley [2004] NSWCCA 228 (Hemsley) at [33]-[36], extracting the following passages:

“[33]   Mental illness may be relevant — and was relevant in the present case — in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced …

[34]   Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration …

[35]   Thirdly, a custodial sentence may weigh more heavily on a mentally ill person …

[36]   A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence …”

[Citations omitted.]

15. Later in the submissions, the author returned to the topic of objective seriousness. After referring to the particular role of the offender, which was said to be of “central significance in assessing objective seriousness”, and referring in that connection to authority, the author continued:

“Other relevant factors include quantity: Melikian v R [2008] NSWCCA 156 (10 July 2008) at [42] and the reason for offending behaviour: Regina v Deng Mading DENG [2007] NSWCCA 216 at [66].”

[Emphasis added.]

16. On 4 September 2020, the parties addressed her Honour orally by reference to the written submissions which they had provided earlier. The applicant’s counsel referred relevantly to the evidence as to mental illness in the following context:

“I would ask the Court to take into account of course the evidence as to mental illness and your Honour will see that he comes before the Court as a man in his early 40s with a quite unusual history and Professor Greenberg opines really that there is underlying early life trauma on account of childhood experiences, experiences quite particular to Israel …

…

LAWRENCE: … the report [of Professor Greenberg] itself is comprehensive. I might just say this, that in my submission there is a very unique combination of circumstances here. He is not a young man but that tells in his favour in the sense that he has now a substantial period of life as an adult without prior convictions, he has pleaded guilty, he has rendered assistance in my submission that is really of a very high degree, he has pleaded guilty, he is not in my respectful submission a good vehicle for general deterrence. It is accepted that he will serve further time in custody.

HER HONOUR: Why is he not a good vehicle for general deterrence?

LAWRENCE: On account of … the report of Professor Greenberg that diagnoses him importantly in this respect with the post-traumatic stress disorder and the depressive disorder which connect in the opinion of the expert to those early life experiences and that in my submission could support a finding certainly of reduced weight to general deterrence.”

17. The applicant’s counsel made no oral submission to the effect that the connection between the applicant’s mental disorders ought lead to a reduction in his moral culpability or objective seriousness.

The reasons for sentence

18. The sentencing judge recounted the facts associated with the offence, based on the statement of agreed facts as follows:

“Supply large commercial quantity of MDA

Between 17 August 2017 and 7 February 2018, on four separate occasions the offender supplied MDA to the undercover operative. The total amount of MDA supplied was 2, 342.94 grams being 9,509 tablets for an agreed amount of $60,250. The four occasions of supply were as follows:

• On 18 August 2017, the offender supplied the undercover operative 1,026 MDA tablets for the amount of $7,000. The weight of the MDA was 226 grams with a purity of 16%;

• On 11 October 2017, the offender supplied the undercover operative 1,021 MDA tablets for the amount of $7,000. The weight of the MDA was 249.02 grams with a purity of 16.5%;

• On 29 November 2017, the offender supplied the undercover operative 2,462 MDA tablets for the amount of $16,250. The weight of the MDA was 610.62 grams with a purity of 15.5%;

• On 7 February 2018, the offender supplied the undercover operative 5,000 MDA tablets. The offender was to receive $30,000 in exchange for supplying these tablets however, the money was not handed over as the offender was arrested by police. The weight of the MDA was 1,257.3 grams with a purity of 9%.

Those Agreed Facts clearly disclose serious objective criminality having regard to the quantity of prohibited drugs that was supplied. The crime of supplying prohibited drugs is regarded by the Courts as serious in circumstances where there are very significant detrimental effects to the community. The supply of prohibited drugs destroys the lives of individuals, it disrupts families and it generates a significant cost to the community both socially and financially. The community expects, and is entitled to expect, that persons who commit this offence will face condign punishment.

19. Her Honour listed the following matters which she had taken into account in assessing objective seriousness: the quantity of MDA supplied; the applicant’s role; that the offending occurred when the applicant had a drug addiction and in order to reduce his personal drug debt; and that the offending took place over a period of almost six months. Her Honour assessed the objective seriousness as being below the middle of the range.

20. The sentencing judge noted that the Crown did not rely on any aggravating factors and proceeded to refer to the applicant’s subjective circumstances, including his age of 44 at the time of sentence. Her Honour summarised and extracted from the report of Dr Greenberg, including the passages extracted above, which set out the various mental illnesses with which the applicant had been diagnosed and posited the link between the diagnoses and the offending based on the applicant’s “self-report and limited documentation”. Her Honour also said:

“In the opinion of Professor Greenberg, the offender’s mental health issues are likely to have contributed to him developing a severe cocaine addiction. Professor Greenberg noted that the offender had some insight into his offending behaviour and also in relation to the wider effects of drugs in the community, he noted however:

‘Although he fully acknowledges personal responsibility for his offending in my view there is an element of minimisation in his account of the offending in that he states he only supplied to one person, the undercover operative. Although it is difficult to assess remorse and any person facing indictable criminal charges [MN] does express remorse for the hurt he has caused his wife, children, family and community.’”

21. The sentencing judge allowed a discount of 25% for the plea of guilty and an additional 20% for the assistance provided. Her Honour also found special circumstances.

22. Her Honour also said, of present relevance:

“The relevance of the offender's mental health

The relevant principles in relation to the relevance of an offender's mental health on sentence are summarised in Director of Public Prosecutions (Cth) vDe La Rosa [2010] NSWCCA 194; 205 A Crim R 1. Having regard to the evidence of Professor Greenberg, I am satisfied that at the time of the offending the offender is likely to have met the criteria for a cocaine use disorder, depressive disorder, post-traumatic stress disorder and a gambling disorder.

It was submitted on behalf of the offender that those findings could support less weight being given to general deterrence. Whilst I accept that each of those mental health issues was likely to be present at the time of the offending, I am not satisfied that they warrant a reduction in the weight to be given to general deterrence in circumstances where the offender well understood the consequences of his actions notwithstanding that his judgment was impaired because of the consumption of cocaine. I do not accept his mental health issues are such that he is not an appropriate vehicle for general deterrence. I also note that self-induced intoxication is not a matter in mitigation on sentence, see s [21A(5AA)], Crimes (Sentencing Procedure) Act.

Relevance of the offender's background

In determining the appropriate sentence, I have taken into account the offender’s difficult childhood circumstances. Whilst I am not satisfied that such circumstances warrant a reduction in his moral culpability in accordance with the principles enunciated in Bugmy v R [2013] HCA 37; 249 CLR 571 I am satisfied that those facts remain relevant to the overall sentencing exercise.

Remorse

I am satisfied that the offender is remorseful and has accepted full responsibility for his offending having regard to the contents of his Affidavit (Exhibit 14).”

Grounds of appeal

Ground 1: alleged failure “properly to take into account the applicant’s mental disorders”

23. The applicant submitted in this Court that the sentencing judge had failed properly to take into account the applicant’s mental disorders. The applicant contended, and the Crown did not dispute, that the sentencing judge had accepted the opinion of Professor Greenberg that there was a causal connection between the applicant’s mental disorders and his offending. The applicant accepted that her Honour had taken into account the link when deciding whether the applicant was a suitable vehicle for general deterrence but contended that her Honour had not taken it into account in determining objective seriousness or moral culpability.

24. Mr Odgers SC, who appeared with Mr Pararajasingham on behalf of the applicant, submitted that it was sufficient that the applicant’s counsel on sentence had referred her Honour to the decision of this Court in Hemsley and that it was “inevitable” that her Honour should have addressed the question whether the connection between the applicant’s mental illness and the offending conduct was such as to impact on the assessment of moral culpability and objective seriousness. I understood him to submit that her Honour ought to have separately addressed these matters, whether or not there was a submission to that effect.

25. In addressing this ground it is important to read the reasons for judgment as a whole, in light of the submissions made to the sentencing judge.

26. The applicant argued that he was an inappropriate vehicle for general deterrence on the basis of mental disorders, but nonetheless contended that he accepted full responsibility for his offending and had, therefore, established remorse as a mitigating factor. Her Honour accepted that he bore full responsibility and was remorseful and can be taken as having regard to this as a mitigating factor. Her Honour found that the applicant “well understood the consequences of his actions notwithstanding that his judgment was impaired because of the consumption of cocaine”. This finding is sufficient, in the context of the reasons as a whole, to address the matters raised on behalf of the applicant.

23. Her Honour also considered whether the applicant’s moral culpability was reduced because of his childhood and upbringing. The sentencing judge found that the applicant’s childhood did not fall within the category of disadvantage and deprivation referred to by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, but expressly took these matters into account when imposing the sentence.

24. The sentencing judge was not in error in failing to address in greater detail submissions which were either not put or were put only by implication from the references in the applicant’s submissions to authority. Her Honour’s reasons were sufficient to address the matters raised.

25. I would refuse leave to appeal in relation to ground 1.

Ground 2: alleged miscarriage of justice resulting from the absence in the sentencing proceedings of a supplementary report by Professor Greenberg

30. This ground was pressed by the applicant only if the first ground was held not to have been made out on the basis that the sentencing judge failed to accept the opinion of Professor Greenberg.

31. My view as to ground 1 is based on the premise that the sentencing judge did accept the opinion of Professor Greenberg that there was a causal link between the applicant’s mental disorders and the offending conduct. Accordingly, this ground does not arise and leave ought not be granted in respect of it.

32. This Court has, in Wang v R [2021] NSWCCA 282 at [84]-[102] (R A Hulme J, Meagher JA and Davies J agreeing), deprecated the practice of an applicant’s legal representative retaining an expert to provide a supplementary report on appeal with a view to elaborating on an earlier report which was tendered at the sentence hearing. It is not necessary to add to these observations, which are apposite in the present case.

Proposed orders

33. For the reasons given above, I propose the following order:

1. Refuse leave to appeal.

34. BELLEW J: I agree with Adamson J.

**********

Decision last updated: 13 April 2022