Pauls v The King

[2024] NSWCCA 123

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Pauls v R [2024] NSWCCA 123

Hearing dates:

8 July 2024

Date of orders:

15 July 2024

Decision date:

15 July 2024

Before:

Mitchelmore JA at [1];
Kirk JA at [60];
Davies J at [61]

Decision:

(1)   Grant the applicant an extension of time to file an application for leave to appeal to 24 May 2024.

(2)   Grant leave to appeal.

(3)   Dismiss the appeal.

Catchwords:

CRIME — appeals — appeals against sentence — whether sentencing judge failed to make findings regarding mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) —— whether reasons inadequate — error resulting in re-sentence — no lesser sentence warranted

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 21A(3)

Crimes Act 1900 (NSW), s 93T(1A)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Criminal Procedure Act 1986 (NSW), s 166

Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases Cited:

Bhatia v R [2024] NSWCCA 28

Bott v R [2023] NSWCCA 255

Douglass v The Queen [2012] HCA 34; 86 ALJR 1086

Kahler v R (Cth) [2021] NSWCCA 40

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

Lee, Matthew v R [2016] NSWCCA 146

Masters v R [2019] NSWCCA 233

R v Keyte (2000) 78 SASR 68

R v Sami Dario (District Court (NSW), 23 April 2024, unrep)

STB v R [2024] NSWCCA 36

Category:

Principal judgment

Parties:

Sabri Pauls (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Chhabra (Applicant)
V Garrity (Respondent)

Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/54765

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

13 September 2022

Before:

Craigie SC DCJ

File Number(s):

2021/54765

HEADNOTE

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

On 13 September 2022, the applicant was sentenced to an aggregate sentence of imprisonment for 7 years, with a non-parole period of 4 years, after pleading guilty to two charges of supply prohibited drug not less than a large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), one charge of supply prohibited drug not less than a commercial quantity contrary to s 25(1) of the Drug Misuse and Trafficking Act and one charge of knowingly participate in a criminal group contrary to s 93T(1A) of the Crimes Act 1900 (NSW). Three further offences were taken into account on a Form 1.

The charges arose as a result of a police investigation during which investigators discovered two plastic drums on the property adjacent to the applicant’s property containing 7.652 kilograms of Gamma-Butyrolactone (GBL) and 0.032 grams of GBL, which they substituted with an inert substance. They subsequently observed the applicant approach the drums and, after realising the drugs had been replaced with another substance, inspect the drums. The investigators executed a search warrant on the applicant’s premises and lawfully intercepted conversations between the applicant and associates on separate occasions negotiating the supply of 2 kilograms of GBL, 5 millilitres of GBL and the purchase and sale of 40 litres of GBL.

The sentencing judge found that the applicant was a principal in supplying very significant quantities of a dangerous illicit drug. In describing his subjective case, the sentencing judge noted that the applicant had a relatively minor criminal history but that he was on conditional liberty at the time of the offending. His Honour reviewed the sentencing assessment report, psychological report and letters from the applicant and his family and partner tendered by the applicant; and acknowledged the parties’ submissions on the applicant’s risk of reoffending and prospects of rehabilitation. His Honour held that it was unavoidable, notwithstanding the applicant’s subjective case, that the sentence imposed must be stern to reflect the seriousness of the offending.

The applicant sought leave to appeal from his sentence on the ground that the sentencing judge failed to make findings as to his remorse, likelihood of reoffending and prospects of rehabilitation, in circumstances where the parties made submissions based on the evidence and joined issue with respect to each of these matters.

The Court (Mitchelmore JA; Kirk JA and Davies J agreeing), granting leave to appeal and dismissing the appeal, held:

1. The sentencing judge erred by failing to make findings on the applicant’s remorse, likelihood of re-offending and prospects of rehabilitation: [44]. The Court could not infer that his Honour considered these factors as his reasons did not disclose what view he ultimately formed in respect to each factor: [42].

   Lee, Matthew v R [2016] NSWCCA 146; Douglass v The Queen [2012] HCA 34; 86 ALJR 1086; R v Keyte (2000) 78 SASR 68; Masters v R [2019] NSWCCA 233; STB v R [2024] NSWCCA 36 applied.

2. Having regard to the objective seriousness of the offences and the applicant’s role, general deterrence, denunciation and protection of the community, no lesser sentence than the sentence imposed was warranted: [58].

JUDGMENT

1. MITCHELMORE JA: On 13 September 2022, the applicant, Sabri Pauls, was sentenced by Craigie SC DCJ after pleading guilty to the following four charges:

1. Two charges of supply prohibited drug not less than a large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (sequence 1 and sequence 6);

2. One charge of supply prohibited drug not less than a commercial quantity contrary to s 25(1) of the Drug Misuse and Trafficking Act (sequence 2); and

3. One charge of knowingly participate in a criminal group contrary to s 93T(1A) of the Crimes Act 1900 (NSW) (sequence 9).

2. Three further offences were taken into account in sentencing the applicant for sequence 6 on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act). Two driving offences were the subject of a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).

3. The applicant was sentenced to an aggregate sentence of imprisonment for 7 years, with a non-parole period of 4 years, following a 25% discount for his guilty plea. The sentence commenced on 25 February 2021 and will expire on 24 February 2028, with the non-parole period expiring on 24 February 2025.

4. The applicant seeks leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), on the ground that the sentencing judge failed to make findings as to remorse, whether he was unlikely to re-offend and whether he had good prospects of rehabilitation, in circumstances where the parties made submissions based on the evidence and joined issue with respect to each of these matters. An extension of time is required and is not opposed.

5. For the following reasons, I would grant leave to extend time to file the application for leave to appeal and grant leave to appeal. I would also uphold the ground of appeal that the applicant advanced. On re-sentencing, I find that no lesser sentence is warranted. I would thus dismiss the appeal.

Agreed facts on sentence

6. The facts of the offending, which were in short compass, were the subject of a Statement of Agreed Facts that the Crown tendered on sentence.

7. As part of an ongoing police investigation, investigators discovered that the applicant was using premises that were adjacent to his address to store drugs (at [1]-[2]). On 9 November 2020, with consent, police searched those adjacent premises and located two plastic drums along the shared fence line. The first drum contained 7.652 kilograms of Gamma-Butyrolactone (GBL) and the second contained 0.032 grams of GBL. The police seized the drugs and substituted an inert substance in the drums (sequence 1) (at [3]).

8. At 4pm the same day, electronic surveillance captured the applicant removing the two drums containing the inert substance in preparation to decant the substance (at [4]). The applicant immediately noticed the difference in weight between the original substance (GBL) and the inert substance, swearing and walking away before returning to the drums a short time later to inspect them (at [5]). The drums were later seized by investigators and DNA belonging to the applicant was located on the lid of the drum that originally contained the larger quantity of GBL (at [6]). Also on the same day, police executed a search warrant on the applicant’s premises and located four roman candle fireworks (sequence 7 – Form 1) and two grams of cannabis leaf (sequence 8 – Form 1) (at [18]).

9. On 25 November 2020, lawfully intercepted messages between the applicant and an associate disclosed the applicant negotiating to supply 2 kilograms of GBL (sequence 2) (ASOF [7]). On 20 and 21 February 2021, lawfully intercepted telephone conversations captured him negotiating the supply of 5 millilitres of GBL (sequence 3 – Form 1) (ASOF [8]-[10]).

10. Between 23 February 2021 and 24 February 2021, the police lawfully intercepted telephone conversations between the applicant and two different associates which detailed how the applicant facilitated the supply of 40 kilograms of GBL by directly instructing those associates (sequence 6, sequence 9). The applicant instructed one of the associates to collect $30,000 from various locations under his control and to deliver the money to the second associate. The applicant next instructed the second associate to purchase two drums totalling 40 litres of GBL using the $30,000, and then instructed that same associate to sell the 40 litres of GBL for $45,000 (at [14]-[17]).

11. The Statement of Agreed Facts also detailed the two charges that were the subject of the s 166 certificate (sequences 4 and 5), which respectively occurred on 9 November 2020 and 10 February 2021 and involved the applicant driving a vehicle at a time when he had been advised that his driving privileges in New South Wales had been withdrawn (at [12]-[13]).

12. On 25 February 2021, the applicant was arrested and taken into custody (at [19]). He has remained in custody since that time.

Proceedings on sentence: 10 June 2022

13. In addition to the Statement of Agreed Facts, the material that the Crown tendered included the signed Form 1, the s 166 certificate, the applicant’s antecedents and custodial history, a letter of remorse that the applicant wrote to the Court in the context of a previous matter and a Sentencing Assessment Report dated 8 March 2022. The applicant tendered a psychological report of Dr Donald Rowe dated 31 March 2022, a letter of apology from the applicant, dated 10 June 2022, letters from his parents and his partner, and a certificate of completion of a positive lifestyle program. He did not give sworn evidence.

14. The letter of apology that the Crown tendered was dated 28 May 2020 and was written by the applicant when he was sentenced, in May 2020, on charges of dealing with the proceeds of crime ($2,600), supply prohibited drug (9.12 grams of cocaine) and possess prohibited drug (a quantity of MDMA). In that letter, the applicant relevantly stated that he was very sorry for what he had done, he had learnt his lesson and he would not commit any offences in the future. He was sentenced on the proceeds and supply charges to a 12-month conditional release order, and for the drug possession charge he was sentenced to a nine month conditional release order.

15. Under the heading “Attitudes” in the Sentencing Assessment Report, the author wrote that the applicant minimised the seriousness of his offending, “verbalising he was buying the drugs to subsidise his own habit and describing the quantity as small scale” and focusing on the financial drivers of his actions. However, the author also noted that the applicant “acknowledged he lacked consequential thinking and acted out of selfishness regarding his financial needs at the time”. Under the heading, “Insight into impact of offending”, the author of the Sentencing Report stated:

“• Initially Mr Pauls displayed minimal insight into the impact [of] his offending. He indicated he was not concerned with the effects of his actions on others and was solely focused on obtaining the financial benefit of cheaper drugs.

• On reflection, he recognised the severity of the offences and was able to identify potential impacts on the wider community.

• While he noted impacts to his own lifestyle, he also stated he did not think he needed to change his beliefs and lifestyle choices.

• However, he indicated should he remove himself from drug subcultures and spends more time with pro-social supports in the form of his family, he will be able to not reoffend.”

16. The author of the Sentencing Assessment Report assessed the applicant at a medium risk of re-offending according to the Level of Service Inventory – Revised (LSI-R).

17. In the letter of apology that the applicant prepared in respect of the present offences, he wrote that he realised the extent of damage that drugs can do to the user, the seller and the community. He also stated that he was remorseful and ashamed of his actions. The report of Dr Rowe also referred to the applicant expressing an appreciation of the negative effects of his offending including on potential victims, and acknowledging the extent to which he had let his family down. Dr Rowe noted the impact of incarceration on the applicant and his motivation to rehabilitate and seek further treatment for his mental illness and illicit substance abuse. The letters from the applicant’s parents and his partner indicated that they supported him.

18. In the course of the written and oral submissions that the applicant advanced on sentence, he submitted that he was unlikely to re-offend and that he had good prospects of rehabilitation, with Senior Counsel describing the applicant’s arrest and incarceration for the current offences as having taught him a “timely and salutary lesson”. In written submissions, Senior Counsel submitted that the subjective material tendered demonstrated significant progress towards rehabilitation, which supported a reduced need for personal deterrence. The Court would also, he submitted, give “full weight” to the clear indications of remorse that the applicant had indicated both in his letter and to Dr Rowe, notwithstanding that he had not given sworn evidence.

19. In the course of the oral submissions, the sentencing judge raised with Senior Counsel that there appeared to be some conflict between the impression of the applicant’s insight into his offending as recorded by the author of the Sentencing Assessment Report, and the much higher level of insight that Dr Rowe described, noting that both reports were prepared in March 2022. Senior Counsel for the applicant submitted that the applicant had taken steps towards total rehabilitation and that he understood that if he continued to deal in drugs, life as he knew it would be over. Senior Counsel also gave some emphasis to the applicant’s youth.

20. The Crown submitted that the applicant had shown “minimal remorse” for his offending, relying on the letter the applicant wrote in May 2020 and the material in the Sentencing Assessment Report to which I have referred above, including the assessment of the risk of re-offending. The Crown submitted that “it would be a very generous finding for the court to be even guarded about the offender’s future prospects with regards to re offending”. The Crown also submitted that the applicant’s prior convictions, while smaller in scale, were relevant because they: revealed a proclivity to resort to drug supply as a financial means of supporting his own habit; showed that he would breach court orders in order to support his drug habit and maintain his lifestyle choices; mitigated against leniency; and showed he was at risk of re-offending in a similar way.

21. In the sentencing hearing, the Crown relied on its written submissions, making only a number of points orally by way of emphasis. The Crown reiterated its written submission regarding the applicant’s risk re-offending, and submitted that the Court would also be guarded in relation to remorse, noting that “ultimately, I think every person that comes through that door does have some sort of remorse on a plea of guilty”. The Crown did not speak against the content of Dr Rowe’s report in so far as it detailed the applicant’s family background and the existence of some degree of Bugmy factors.

The sentence: 13 September 2022

22. The sentencing judge commenced his remarks by noting the charges, the maximum penalties, and any applicable standard non-parole periods. The maximum penalty for sequence 1 was life imprisonment and there was a standard non-parole period of 15 years’ imprisonment. As to sequence 2, the maximum penalty was 20 years’ imprisonment, with a standard non-parole period of 10 years’ imprisonment. The maximum penalty for sequence 6 was the same as sequence 1, with his Honour noting the three additional offences on the Form 1. The sequence 9 offence carried a maximum penalty of 10 years’ imprisonment. His Honour also referred to the two driving charges on the s 166 certificate.

23. After summarising the Statement of Agreed Facts, the sentencing judge found that the applicant’s conduct supported a conclusion that he was “a principal in the business of supplying very significant quantities of a dangerous illicit drug”, with his role involving the storage, supply, arrangement for support and financing of the drugs. The quantity of GBL that was the subject of sequence 6 was 10 times the statutory threshold for a large commercial quantity, while the quantity of GBL that was the subject of sequence 2 was double the commercial quantity threshold (ROS 7).

24. Turning to the applicant’s subjective and personal circumstances, the sentencing judge described the applicant as “no stranger to the criminal justice system, although he had not previously been subject to a term of full-time imprisonment”. His Honour outlined the applicant’s “relatively minor” criminal history, but noted that the offences for which he had been sentenced to conditional liberty at the time of the present offending disclosed that he had some prior association in dealing with drugs for financial gain, which disentitled him to leniency (ROS 8-9). The sentencing judge subsequently described the charges for which he was to sentence the applicant as representing an escalation in drug offending (ROS 10).

25. The sentencing judge summarised the content of the Sentencing Assessment Report, including the aspects of the report to which I have referred above. His Honour noted that the applicant had a good prosocial support network from his family, and was in a relationship that exhibited prosocial and antisocial elements (his partner having been incarcerated in relation to some involvement arising from the present circumstances). His Honour emphasised the applicant’s acknowledgement that he had exhibited a lack of consequential thinking and acted out of selfishness, as to which he had reflected and changed his thought patterns (ROS 9-11). His Honour also noted the reference in the assessment report to the applicant’s minimal insight into offending, followed shortly thereafter by an indication that he was able to recognise the severity of his offending and the potential impacts on the wider community (ROS 12).

26. In relation to the report’s assessment of the applicant as at medium risk of reoffending, his Honour described the LSI-R as being “of some value” as a generally indicative sentencing tool, but was “not determinative of the Court’s assessment upon the required complex process of formulating an appropriate exercise of judicial sentencing discretion” (ROS 12). One of the applicant’s complaints pursuant to the ground of appeal was that his Honour did not ultimately make a finding about his risk of re-offending.

22. The sentencing judge next referred to the documents the applicant tendered. In relation to Dr Rowe’s report, his Honour referred to the applicant’s origins in Iraq, his journey to Australia as a result of the Iraqi war, and his difficult home life in Australia, with his parents afflicted by a high degree of unhappiness given the trauma of their experiences in Iraq (ROS 14). His Honour accepted that the applicant was likely to have been the subject of some level of transmitted trauma (ROS 17).

23. The sentencing judge also accepted that the applicant was sexually abused by a teacher when he was approximately 14 or 15 years old, which his Honour described as the most significant feature of his upbringing and background and which he accepted “more probably than not, would have been a traumatising experience, sharpened no doubt by the offender’s age and particular vulnerability”. The sentencing judge accepted that there must have been real psychological harm done to the applicant, and that he would as a result have been damaged (ROS 15). His Honour stated that this conclusion qualified “the usual and proper determination” that drug addiction is not a mitigating factor, “in that the source of the addictive habit appears to be at least partly on the foundations of earlier experience and damage done to the offender” (ROS 18; see also ROS 23).

24. His Honour noted Dr Rowe’s opinion that the applicant was likely to have suffered from depression during his childhood and youth, and that there was an emerging major depressive disorder relating to the death of his cousin in 2020 and two stabbing incidents involving other individuals he was close to (ROS 19-20). His Honour accepted that those matters “more probably than not went to impact the offender’s capacity to make sound judgments, overwhelmed as they were by the offender’s acceptance of a lifestyle where drugs and his interest in them dominated” (ROS 20). They did not, however, “set aside the state of the evidence that reveals quite deliberative offending and a degree of capacity to organise and engage in the way that the offender did through a quite determined course of offending” (ROS 20; see also ROS 26). His Honour found that the applicant performed a number of functions that were consistent with a drug marketing enterprise (ROS 27).

25. In relation to what Dr Rowe recorded in his report about the applicant’s awareness of the negative effects of his offending, and his realising the extent of damage that drugs can cause users, sellers and the community, his Honour stated (ROS 23):

“The offender’s reflections at paragraph 56 of Dr [Rowe’s] report, if genuine, would reflect a high level of insight. I note, however, there is an apparent conflict between those quoted statements and the impressions conveyed to the author of the Sentencing Assessment Report of 8 March 2022.”

31. The applicant also relied on this passage as supporting his ground of appeal. The applicant submitted that it demonstrated the sentencing judge’s awareness of a conflict in the evidence about remorse that called for resolution; and yet his Honour failed to make a finding that resolved the conflict.

32. In relation to the submissions advanced by the applicant and the Crown, the sentencing judge upheld the submission that the applicant was not driven solely by greed for financial reward as he was also an addict (ROS 24). As to the applicant’s submission that there was a distinction between GBL and other drugs, his Honour stated that the fundamental structure of the sentencing regime was largely gathered by quantities, and in the present case sequence 6 in particular exceeded the statutory threshold for large commercial quantity by a very large degree (ROS 24). His Honour accepted that the indicative actual level of likely profit accruing was relatively modest, but noted that the present dealing was “quite persistent and in no way to be regarded as a trivial example of the offending” (ROS 25).

33. His Honour found that an aggravating circumstance was that the applicant was at conditional liberty at the time of the offending, stating (ROS 27-28):

“…as I note that may well be a matter that bears upon assessment of his risk of reoffending, however, it does not aggravate the objective offending. That also has some interrelationship with the offender’s status as a person who has no entitlement to leniency. Features of the record are concerning, particularly in a previous conviction for drug supply. So much is conceded by Mr Lloyd.”

(Emphasis added)

34. His Honour continued:

It has been submitted that on balance, however, I would find that the offender has reasonable prospects of rehabilitation and that a sentence that is not crushing and provides some prospect during parole of addressing matters the offender recognises would be appropriate in the public interest. On behalf of the Crown, Ms Chessor drew attention to the inherent difficulty of the offender dealing with large commercial quantities of the drugs being counted to the submission that he was meeting greed rather than need. I observe, however, that a degree of reward does not obscure the fact that there was, I accept more probably than not, a degree of need, in the sense of a perceived benefit directed towards feeding a habit. Otherwise, the scale of the offending certainly had about it a prospect of reward simpliciter. It was submitted, on behalf of the Crown, that the offender still made a profit from his behaviour, a submission that I would uphold. I take account that as an inescapable reality, that is so. I also note Mr Lloyd’s proper submissions as to the relatively limited scale of monetary benefit, alongside the fact of the offender’s addiction. I find the latter to be proven on the balance of probabilities. I would give it no weight as a mitigating circumstance, as distinct from seeing it as an outcome of matters that do mitigate in those aspects of hardship of a Bugmy type. Ms Chessor noted an apparent conflict between what the offender said in the psychologist report and impressions that he conveyed in the Sentencing Assessment Report. In doing so she conceded, properly in my view, the distinction between the exercise of preparing a Sentencing Assessment Report; created as she submitted in something of a vacuum whereby the focus is not upon the offender and the kind of close examination that arises in a psychological assessment. However, Ms Chessor’s position was that the Court should be guarded as to the offender’s prospects of rehabilitation.”

(Emphasis added.)

35. Again, the applicant relied on the emphasised passages in the two above extracts as indicating that the sentencing judge was aware that the Crown and the applicant were at issue about the applicant’s risk of reoffending and prospect of rehabilitation, and yet made no finding in relation to either factor. That absence may be contrasted with his Honour making a finding, partway through the extract in [34], that he would give the offender’s addiction no weight as a mitigating circumstance.

36. After considering the offences on the Form 1, his Honour noted the principles of totality and the close relationship between the individual offences and the available conclusion that the offending was largely part of a continuing course of conduct (ROS 29). His Honour described it as “unavoidable, notwithstanding the offender’s substantial subjective case, that the sentence or sentences to be imposed must be stern, as is required to reflect the seriousness of the drug related offending in the setting of a criminal group where the public interest has been harmed and there is a required significant level of denunciation, effective punishment and general deterrence” (ROS 29-30). His Honour thus nominated the following indicative sentences:

1. Sequence 1: head sentence of 4 years and 9 months’ imprisonment and a non-parole period of three years and two months.

2. Sequence 2: head sentence of 3 years’ imprisonment and a non-parole period of 2 years.

3. Sequence 6 (taking into account the matters on the Form 1): head sentence of 6 years’ imprisonment and a non-parole period of 4 years.

4. Sequence 9: sentence of 3 years’ imprisonment.

37. I have referred to the aggregate sentence that his Honour imposed above (at [3]). His Honour made a finding of special circumstances “by reason of the requirement for the offender to be subject to a significantly longer period of supervision, restraint and support on parole than would otherwise be the case” (ROS 31).

Ground of appeal: failure to make findings regarding remorse, risk of reoffending and prospects of rehabilitation

38. The applicant submitted that in circumstances where the evidence and submissions made to the sentencing judge demonstrated that the matters of remorse, risk of reoffending and prospects of rehabilitation were relevant and known to the court, his Honour erred in failing to make any findings in respect of them. He submitted that such references as his Honour made to those factors, to which I have referred above, were not sufficient, particularly when unlikelihood of reoffending, good prospects of rehabilitation and remorse are mitigating features pursuant to ss 21A(3)(g), (h) and (i) of the Sentencing Procedure Act, respectively. The differences between the applicant and the Crown on those factors, he submitted, called for clear and transparent resolution in the form of a finding.

39. The Crown accepted that the sentencing judge made no express finding or conclusion on the three factors on which the applicant relied. Nonetheless, the Crown contended that, when read as a whole, it could be inferred that his Honour did consider each of those factors and was unable to reach the positive finding in mitigation for which the applicant contended.

40. As counsel for the applicant accepted when it was put to him in the course of the hearing, as a matter of substance the arguments he advanced relied on the inadequacy of the reasons of the sentencing judge. In Lee, Matthew v R [2016] NSWCCA 146 ("Lee”), Basten JA and McCallum J (Davies J agreeing) referred, in the criminal context, to Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 (“Douglass”), in which the High Court referred (at [14]) with approval to the explanation that Doyle CJ gave, in R v Keyte (2000) 78 SASR 68 at 76; [2000] SASC 382, as to why a judge is required to give reasons for a verdict following trial, stating:

“These included that in the absence of reasons, the appellate court is unable to determine whether the judge has correctly applied the relevant rules of law. In this case, the failure to record any finding respecting the appellant's evidence left as one possibility that the judge simply preferred CD's evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error. It is unnecessary to address the consequence of that error in circumstances in which, as will appear, the appellant's second ground must succeed.”

41. Basten JA and McCallum J stated that the following two propositions may be derived from this reasoning (at [26]):

“First, the failure to give proper reasons is an error of law. Secondly, the reasons must be adequate to demonstrate the absence of a real ‘possibility’ that the judge failed to apply correct legal principle. In other words, where the possibility of error was open, the appellate court should not have assumed that, because the legal principle was well known and indeed fundamental, it had been applied.”

42. The passage from Douglass, and its distillation in Lee, demonstrates why this court is not in a position to draw the inference for which the Crown contended. His Honour’s reasons do not disclose what view his Honour ultimately formed about the applicant’s expressions of remorse, whether he was unlikely to offend and whether he had good prospects of rehabilitation. True it is that his Honour referred to each of those factors in the course of the reasons, and, in the case of risk of reoffending and prospects of rehabilitation, noted competing submissions were made. Those references serve only to emphasise the absence of any conclusions in respect of them. In circumstances where the evidence was not completely consistent on these issues, the differences required “clear and transparent resolution”: Masters v R [2019] NSWCCA 233 at [31] (Hamill J, Bathurst CJ and Macfarlan JA agreeing). As Lonergan J stated in the recent decision of STB v R [2024] NSWCCA 36 at [45] (Price and Dhanji JJ agreeing):

“Whilst it is not appropriate to parse remarks on sentence as if they are statute, and whilst it is obviously necessary to read the remarks on sentence as a whole, it is not sufficient for those remarks to make reference to evidence but then articulate no conclusion at all as to how that evidence informs the relevant aspects of the sentencing exercise.”

43. The Crown submitted that the absence of express mention of a relevant factor does not inevitably lead to the conclusion the factor must have been overlooked, and so much may be accepted. The circumstances of the case and the reasons on sentence must be closely examined: Kahler v R (Cth) [2021] NSWCCA 40 at [29]. Such examination may reveal, for example, that the sentencing judge was not able to resolve an issue in favour of or against an offender: Bhatia v R [2024] NSWCCA 28 (“Bhatia”) at [42]-[43]. Examining the reasons in the present case does not yield that result. The applicant made this point, with some force, by way of contrast to the reasons of the sentencing judge in Bhatia. By way of example, on the issue of Mr Bhatia’s risk of reoffending and rehabilitation the sentencing judge stated (as reproduced in Bhatia at [23]):

“As well as the defence submissions it was emphasised that it was spontaneous and unplanned offending. It was contended it was unlikely he will reoffend. I make no finding one way or another. This is in my view neutral. It is very hard to assess. It is also contended by the defence he has got good prospects of rehabilitation. In my view this can only be assessed as reasonable in the circumstances. …”

(Emphasis omitted.)

44. The sentencing judge in the present case did not make any findings of that nature. His Honour described the applicant as having a substantial subjective case, but how the three mitigating factors on which the applicant relied on this ground of appeal factored into the sentencing process (if at all) is opaque, which the Crown’s submission, that the evidence on each factor allowed for competing inferences, served only to emphasise.

Re-sentence

45. As error has been established, the Court is required to undertake afresh an independent exercise of the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35], [42].

46. The offences for which the applicant is to be re-sentenced are serious offences. I have referred to the maximum penalties and applicable standard non-parole periods at [22] above. I note that two of the offences involved the applicant supplying a large commercial quantity of the drug, an offence that carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

47. The applicant did not challenge his Honour’s findings as to the objective seriousness of the offences. On those findings, the applicant was a principal engaged in drug supply offending, with the offences occurring over a four month period between November 2020 and February 2021. The offending was, as the sentencing judge described it, persistent and in no way to be regarded as a trivial example of such offending.

48. The applicant emphasised that the drug concerned was GLB, a “low reward” drug resulting in lower sentences, relying on Bott v R [2023] NSWCCA 255. Before the sentencing judge, the Crown did not contest the indicative monetary value and his Honour accepted that a relatively modest degree of monetary benefit accrued from the sale of GBL in particular. Nonetheless, as his Honour noted directly in response to this submission, sequence 6, in particular, exceeded the statutory threshold defining a large commercial quantity by a very large degree.

49. The applicant relied on the favourable findings made by his Honour. I have referred in some detail above to his Honour’s findings, including in relation to the applicant’s upbringing and his mental health. The applicant submitted that the Court should find in addition that the applicant had shown remorse, had good prospects of rehabilitation, and was unlikely to reoffend. He relied in this respect on the submissions in mitigation that were advanced on his behalf before the sentencing judge. The Crown submitted that the Court would not be satisfied that the applicant had proven the mitigating factors in s 21A(3) and would not mitigate the sentence on any of those bases.

50. The applicant’s letter to the court, his report by Dr Rowe, and, albeit to a lesser extent, what he told the author of the Sentencing Assessment Report, are consistent with the presence of some remorse on the part of the applicant. However, I do not consider that the factor can be given much weight in the present circumstances, particularly having regard to the letter the applicant provided to the Court at the end of May 2020 in the context of his offending in 2019. In that letter, the applicant expressed remorse only to engage in the present offences commencing in November 2020.

51. The May 2020 letter is also relevant to the applicant’s reliance on the further mitigating factors that he is unlikely to reoffend and has good prospects of rehabilitation. As I noted at [14] above, the applicant wrote in that letter that he had learnt from his mistakes and declared that he would not offend again. Not only did the applicant not adhere to that declaration, the present offending represented an escalation in his drug offending, in which he engaged when he was on conditional liberty. The latter was an aggravating factor on sentence, pursuant to s 21A(2)(j) of the Sentencing Procedure Act.

52. I have taken into account the evidence of the applicant in an affidavit sworn on 5 July 2024, which was read without objection on the usual basis. In that affidavit, the applicant gave evidence of being consistently employed in prison. He held the position of sweeper at Lithgow Correctional Centre for seven months before his transfer to Macquarie Correctional Centre (Macquarie). At Macquarie, the applicant was first employed in light engineering/welding (six months) and then on the ground maintenance staff (three months). For the last six months, he has been teaching model building classes. The applicant teaches four classes across two days each week, with each session lasting between two and three hours. Tools are signed out to him each day, including Stanley knives, a saw, screwdrivers, scissors and files, and he is responsible for ensuring they are kept safely and returned daily.

53. The applicant has completed a Certificate II in Construction through TAFE NSW at Kingswood College. The Certificate III in Construction course is not available at Macquarie. He has obtained his white card and a first aid certificate. The applicant has also completed a digital literacy course.

54. In terms of his substance use, the applicant gave evidence that he has been on a Buvidal drug program since the end of 2023, having requested to go on the program in or around April 2023. He receives a monthly injection. The applicant’s evidence is that the Buvidal program has helped him, and his goal is “to eventually get off of Buvidal completely”.

55. In 2023, the applicant incurred two custodial infringements. The first, in March 2023, was a disobey direction for not having his shirt on properly when lining up for head count. The second, which is of greater concern, was incurred in May 2023 for possessing a drug. The applicant’s evidence was that he was found in possession of half a buprenorphine strip. In his affidavit, he did not seek to excuse that behaviour, but did note that it was before he was accepted to the Buvidal program.

45. The actions that the applicant has undertaken whilst in custody are to his credit, as is the level of responsibility that the corrective services staff at Macquarie have given him. I find that should he remain on the current trajectory he will be unlikely to reoffend and has good prospects of rehabilitation. The qualification is necessary in light of the applicant’s issues in the past with substance abuse and the escalation in offending constituted by the applicant’s present offences, and necessarily affects the weight I give these factors in mitigation.

46. I note that the applicant referred to an unpublished decision of the District Court in R v Sami Dario (District Court (NSW), 23 April 2024, unrep) in which an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years was imposed for offences contrary to s 25(2) of the Drug Misuse and Trafficking Act involving more than 1.2 tonnes of GBL. Aside from providing the name of the decision and the ultimate sentence, the applicant did not make any further submissions as how and to what extent that decision was comparable to the present case. Whilst I note the sentence imposed on that case, I do not derive any significant assistance from it in determining the appropriate sentence in the present case.

47. Ultimately, having regard to the objective seriousness of the offences and the applicant’s role, general deterrence, denunciation and the protection of the community are relevant and weighty considerations in the sentencing exercise. Having carefully considered all of the circumstances, I have concluded that no lesser sentence than the aggregate sentence that the sentencing judge imposed was warranted. I note that no challenge was made to the finding of special circumstances and the significant variation that the sentencing judge made to the statutory ratio which resulted in a non-parole period that is 57.14% of the length of the head sentence.

Conclusion

59. I propose the following orders:

1. Grant the applicant an extension of time to file an application for leave to appeal to 24 May 2024.

2. Grant leave to appeal.

3. Dismiss the appeal.

60. KIRK JA: I agree with Mitchelmore JA.

61. DAVIES J: I agree with Mitchelmore JA.

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Decision last updated: 15 July 2024