R v Boyd - [2022] NSWCCA 120

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Boyd [2022] NSWCCA 120
Hearing dates: 11 May 2022
Date of orders: 10 June 2022
Decision date: 10 June 2022
Before: Macfarlan JA at [1];
Rothman J at [2];
Dhanji J at [215]
Decision:
Appeal dismissed.

Catchwords:
CRIME – Crown appeal against sentence – manifest inadequacy – sentence was manifestly inadequate – insufficient accumulation for separate offence of assault over unrelated drug offences – no issue of principle requires intervention – “residual” discretion to intervene refused.

Legislation Cited:
Crimes Act 1900 (NSW), s 59
Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Criminal Appeal Act 1912 (NSW), s 5D
Drugs (Misuse and Trafficking) Act 1985 (NSW), s 25

Cases Cited:
Abdul v R [2019] NSWCCA 18
Assam v R [2019] NSWCCA 12
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
CMB v Attorney-General (NSW) (2015) 258 CLR 346; [2015] HCA 9
Cullen v R [2014] NSWCCA 162
Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31
Devaney v R [2012] NSWCCA 285
Devaney v R [2012] NSWCCA 285
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194
Dunshea v R [2016] NSWCCA 244
Edmonds v R [2022] NSWCCA 103
Faraj v R [2022] NSWCCA 31
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huang v R [2017] NSWCCA 312
Jackson v R [2019] NSWCCA 101
Kane v The Queen [2021] NSWCCA 250
Leach v The Queen (2008) 183 A Crim R 1; [2008] NSWCCA 73
Lloyd v R [2022] NSWCCA 18
Matu v R [2019] NSWCCA 23
McKinnon v R [2020] NSWCCA 106
Naberezhnov v R [2021] NSWCCA 142
Piao v R [2019] NSWCCA 154
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Fyffe [2002] NSWSC 751
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R vHernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
R v Jeremiah [2016] NSWCCA 241
R v Kazzi [2008] NSWCCA 77
R v Osenkowski (1982) 5 A Crim R 394
R v Thomson [2016] NSWCCA 56
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
R v Yiu; R v Yau [2018] NSWCCA 155
R v Yucel [2000] NSWCCA 532
See v R [2020] NSWCCA 272
Shi v R [2017] NSWCCA 183
Tamer v R [2020] NSWCCA 333
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Regina (Appellant)
Denis Christopher Boyd (Respondent)
Representation:
Counsel:
E Balodis (Appellant)
T Quilter (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Appellant)
Jamieson Criminal Law (Respondent)

File Number(s): 2019/00374328; 2021/00023689
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 October 2021

Before:

Harris DCJ

File Number(s):

2019/00374328; 2021/00023689

Judgment

MACFARLAN JA: I agree with Rothman J and also with the additional observations of Dhanji J.
ROTHMAN J: The Crown appeals against the sentence imposed on Denis Christopher Boyd, the respondent. The Crown raises one ground of appeal, being that that the aggregate sentence imposed is manifestly inadequate.
On 25 October 2021, the District Court at Parramatta sentenced the respondent for five separate offences relating to the supply of prohibited drugs (contrary to s 25(2) Drugs (Misuse and Trafficking) Act 1985 (NSW)), and one count of assault occasioning actual bodily harm (contrary to s 59(2) of the Crimes Act 1900 (NSW)).
Her Honour Judge Harris imposed an aggregate sentence of 9 years’ imprisonment, commencing 27 November 2019 and expiring on 26 November 2028. The non-parole period imposed upon the respondent was 5 years and 9 months, concluding on 26 August 2026.
The respondent had pleaded guilty to the offences in the Local Court on 13 November 2020 and was entitled to a 25% discount for the utilitarian value of the plea of guilty.
The most convenient method of understanding the offences for which the respondent was sentenced is by the following table.

Sequence

Offence

Maximum penalty

Indicative sentence

Indictment

7

Between 8 August 2019 and 13 August 2019, supplied large commercial quantity of prohibited drug – 787.2g methylamphetamine

Life imprisonment (SNPP 15yrs)

3yrs 10mo (NPP 2yrs 5mo)

12

Between 10 October 2019 and 27 November 2019, supplied large commercial quantity of prohibited drug – 4108.5g methylenedioxy-methylamphetamine (MDMA)

Life imprisonment (SNPP 15yrs)

5yrs (NPP 3yrs 2mo) (incl. Form 1 offence)

17

On 28 August 2019, supplied commercial quantity of prohibited drug – 873.2g amphetamine

20yrs (SNPP 10yrs)

3yrs (NPP 1yr 10mo)

18

On 17 December 2018, knowingly took part in the supply of large commercial quantity of prohibited drug – 999.9g methylamphetamine

Life imprisonment (SNPP 15yrs)

4yrs 6mo (NPP 2yrs 10mo)

19

Between 7 February 2019 and 3 June 2019, supplied large commercial quantity of prohibited drug – 5981.7g of ephedrine

Life imprisonment (SNPP 15yrs)

3yrs 10mo (NPP 2yrs 5mo)

2 (H77783522)

On 26 December 2020, committed assault occasioning actual bodily harm in company

7yrs (no SNPP)

3yrs 3mo

Form 1

16

On 27 November 2019, knowingly deal with proceeds of crime – $40,150

15yrs (no SNPP)

Taken into account with Seq 12

The assault occasioning actual bodily harm was an offence committed whilst the respondent was on remand for the other offences.
The circumstances of the drug supply offences were the subject of a Statement of Agreed Facts (hereinafter “the Agreed Facts”), which was tendered by the Crown. The drug supply activities of the respondent and his associates were revealed by a New South Wales Police Force (hereinafter “NSWPF”) investigation.
Using an encrypted messaging app, NSWPF undercover operatives contacted the respondent and bought drugs from him on 11 separate occasions. The total amount purchased was 12.46kg of three different types of prohibited drugs, as outlined in the foregoing table. The controlled purchases by NSWPF occurred between 17 December 2018 and 27 November 2019.
The respondent was arrested at a pre-arranged meeting with an undercover officer on 27 November 2019. After arresting the respondent, police executed a search warrant at the respondent’s home, where they located $40,150 in cash. The cash is the subject of the offence contained in the Form 1. It should be noted that one of the $50 notes was from the “pre-recorded buy money” used during one of the controlled purchases.
NSWPF also discovered 285.9g of methylamphetamine in a clear resealable bag in the respondent’s laundry. A fingerprint and further DNA on the bag matched that of the respondent. This quantity is included in the quantity that is subject to the offence in Sequence 7, described in the above table.
Other equipment located in the search were sandwich sized resealable plastic bags, a digital scale, mobile phones, and clothing worn by the respondent during the course of the investigation. The respondent was taken to Blacktown Police Station and consented to a forensic procedure.
The controlled purchases to which reference has been made arose from a NSWPF investigation in 2018 in which the Criminal Groups Squad, Strike Force Raptor investigated the criminal activities of the respondent and his associates. There was significant electronic and physical surveillance and significant evidence relating to the drug supply.
It is unnecessary to detail the contacts which led to the charges and the evidence that was available to the Crown. The foregoing summary is sufficient.
There are also agreed facts relating to the assault occasioning actual bodily harm in company. As already stated, the respondent was on remand at Shortland Correctional Centre for the drug supply offences at the time of the offence. The respondent’s co-offender, who was three years younger, was in custody for drugs and firearms offences.
The respondent and his co-offender entered a raceway area when the victim had begun to walk away. The respondent immediately lunged at the victim and attempted to punch him. The victim ran backwards away from the door in an effort to get away. Both the respondent and his co-offender followed the victim with one of them positioned on either side of him.
After about seven seconds of running on either side of the victim, the co-offender punched the victim to the head, causing the victim to fall to the ground. After the victim fell, he curled up into a ball, using his knees and arms to cover his body and head. The respondent and his co-offender then took turns, alternating between punching, kicking and stomping on the victim, while he lay on the ground.
The respondent began by punching the victim, while the victim was on the ground, while, at the same time, his co-offender stomped on his head. The victim remained on the ground while the co-offender stomped a further three times. The respondent continued to punch at the victim before stomping on the victim’s head twice, kicking him in the head once, then stomping on his head on a further two occasions.
The respondent attempted to remove the victim’s hands from their position protecting the victim’s head, while the respondent’s co-offender stomped on the victim’s body area four times. The respondent continued to punch the victim in the head during that event.
The victim got to his feet and attempted to flee. The respondent and his co-offender chased him, pushed him into a metal fence and caused him to fall to the ground again. The co-offender then punched the victim to the face, while the respondent stomped on his head twice.
At that point, correctional officers entered the area and, ultimately, the assault concluded. The victim was able to stand up and walk away unassisted.
The whole event lasted about 28 seconds and the victim, according to a hospital report, suffered bruising to the left side of his head. His head was tender to touch, and the victim complained of a headache and blurred vision. There were no other injuries, and the victim was discharged, without overnight admission and treated with over-the-counter analgesics. The injuries resolved.

Sentencing Material

The Crown Bundle before the learned sentencing judge consisted of the Agreed Facts (which is summarised above); a Sentencing Assessment Report; the Remarks on Sentence of the co-offender Mr Cullen; and the Remarks on Sentence of a past drug supply conviction of the respondent, which occurred in 2011. For the 2011 conviction, the respondent was sentenced to 7 years and 6 months’ imprisonment, with a non-parole period of 4 years. The sentence concluded on 28 November 2018 and the non-parole period concluded on 28 May 2015.
At the sentence hearing, the respondent further tendered two Reports of his treating Psychologist, Mr Neil Ballardie, dated, respectively, 24 March 2021 and 14 August 2021. There was also a Report by Forensic Psychologist, Ms Allison Cullen of 4 May 2020, which pre-dated the respondent’s plea of guilty. Apart from the foregoing, the respondent relied upon an Affidavit of his sister, Ms Jody Boyd; an Affidavit of his Solicitor, Mr Benjamin Jamieson; and, he tendered a letter written by him to her Honour relating to his subjective circumstances and the precipitation of his offending as a result of his separation from his partner. Each of the foregoing will be dealt with more fully later in these reasons for judgment.

Remarks on Sentence

After setting out the offences and summarising the Agreed Facts, her Honour assessed the objective seriousness of the offences. Her Honour considered that the Sequence 18 offence fell below the mid-range of objective seriousness, but not substantially below it. The Sequence 19 offence, according to her Honour, fell below mid-range, as did the Sequence 7 and 17 offences; and the Sequence 12 offence was about the mid-range.
In reaching those assessments, her Honour took into account the the amount and purity of the drugs supplied; the number of occasions on which the drug was supplied; the planning involved; and, the motivation for the supply, which her Honour found was financial, albeit against a background of a long-standing drug addiction. Her Honour specifically considered the role of the respondent, and found that his involvement in the business of the supply of drugs was higher than any of his co-offenders; she described the respondent as “at least a mid-level drug dealer”. [1]
1. Remarks on Sentence, at p 14; Appeal Book, at p 19.
The sentencing judge further considered the need for appropriate punishment given that drugs are the principal source of crime in the community and the amount of time required by law enforcement authorities to detect and to prosecute such offences. Her Honour took into account the purposes of sentencing, noting that denunciation, punishment, general deterrence and specific deterrence were important considerations.
The offence that was notified on the Form 1 was described by her Honour as placing “limited upward pressure on the sentence to be imposed for the principal offence” [2] .
2. ROS, at p 15; Appeal Book, at p 20.
As to the assault offence, which, as previously stated, occurred in prison, her Honour described the circumstances of the offending, which have been summarised above.. Her Honour noted the aggravation associated with the assault being conducted in company, and the seriousness inherent in the charge because a single victim will, ordinarily, have no chance to defend adequately against such an attack. [3]
3. R v Jeremiah [2016] NSWCCA 241 (Meagher JA, Davies and Fagan JJ).
Further, her Honour referred to a passage relating to the importance of imposing sentences in relation to prison offences which bear in mind the importance of deterrence,[4] where Barr J said:

“It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them.”[5]
4. R v Fyffe [2002] NSWSC 751 (Barr J).
5. Ibid at [33].

Her Honour described the offence as an act of “sustained and serious violence” and noted that this was conceded on behalf of the respondent. Her Honour noted the claim that the respondent had been assaulted by the victim on an earlier occasion, for which there was no evidence in support (other than the claim itself and a custody record showing the involvement of the respondent in an earlier incident). Her Honour referred to the prior assault as providing context; it did not excuse, in her Honour’s view, the level of violence that had been perpetrated.
The Remarks on Sentence then deal with the respondent’s prior criminal history which was described as “poor” and involved the commission of similar offences involving drugs. It is unnecessary to repeat her Honour’s summary, but the history involved a drug offence in 2005, for which the respondent received a suspended sentence. That suspended sentence was called up for breach and the respondent served periodic detention.
In 2011, the respondent was sentenced to 7 and a half years’ imprisonment for the supply of a commercial quantity of methylamphetamine and was released on parole on 13 March 2015. He returned to custody on 11 April 2016 and was released again on 10 April 2017.
The respondent was on parole on 2 November 2017 when he committed offences involving the possession of prohibited drugs. For those offences the respondent received a Bond, which expired on 26 January 2020.
The respondent committed the offences for which her Honour sentenced him while on that Bond. Her Honour treated that as an aggravating feature on sentence. The respondent’s criminal history, noted by her Honour, was said to disentitle him to leniency as it exacerbated considerations of personal deterrence, retribution, and protection of the community.
Notwithstanding a juvenile offence, her Honour noted that the respondent had little criminal history of violence and, therefore, could be treated more leniently in relation to the assault offence.
Next, her Honour dealt with the subjective circumstances of the respondent and noted the material, described above, on which the respondent relied. Her Honour noted that Mr Ballardie and the respondent’s sister, Ms Jody Boyd, were the subject to cross-examination by the Crown. She described Mr Ballardie as “an impressive witness” [6] .
6. ROS, at p 20; Appeal Book, at p 25.
As at August 2021, the respondent had attended 12 sessions with Mr Ballardie, commencing 7 April 2020. At the time of sentencing, the respondent was 38 years of age. He had grown up in the western suburbs of Sydney and was one of six children, and he remains close to his siblings.
The respondent’s parents separated when the respondent was about six. His parents then reconnected and, at the time of sentencing, seemed to have a good relationship. The respondent described his childhood, in financial terms, as “strained”, after the separation.
The respondent’s father spent periods of time in gaol and the respondent described him as controlling and as an alcoholic. At the age of 14, his father introduced the respondent to what became an ongoing gambling addiction. [7]
7. ROS, at p 20; Appeal Book, at p 25.
At the age of seven, the respondent was sexually assaulted by a family friend. The learned sentencing judge commented that the incident seems to have been isolated but that it has continued to cause the respondent emotional trauma. In the experience of the Court, this is unsurprising.
There were a number of other traumatic events summarised by Ms Cullen, which occurred throughout the respondent’s life and had an impact on his subsequent drug use. The respondent left school in Year 8 and began an association with older males who had a negative influence on him.
The respondent commenced using drugs at 17. At that time, his drug of choice was ketamine – an anaesthetic and hallucinogen. He also joined an outlaw motorcycle gang and his association with the gang normalised his gambling and drug use. He left the motorcycle gang in 2004.
The respondent has had limited employment and his longest period of employment was four years, working for his uncle in landscaping.
Even though the respondent left the outlaw motorcycle gang, he continued to associate with negative peers. In 2010, after a close friend died unexpectedly, the respondent’s home was sprayed with bullets and a gun was held to his head. It appears that it was the respondent’s housemate that was the target of this offence.
Nevertheless, following this incident, the respondent suffered symptoms normally associated with post-traumatic stress disorder (PTSD), including paranoia, increased anxiety and depression. The respondent refused to give evidence against the assailant Two years later, in 2012, the housemate was murdered, which engendered feelings of guilt in the respondent. Even though he was in custody at the time of the murder, the respondent felt that had he assisted Police with the earlier incident, the murder may not have occurred.
On the respondent’s release to parole in 2015, he commenced abusing anabolic steroids. The respondent maintained that he was not using other drugs at the time, for about nine months. At that time, he commenced a relationship and the couple have a three-year-old son.
The breach of his parole, which occasioned his return to custody on 10 April 2017, was the respondent’s attendance at a funeral of another friend who had been murdered and was also a club member.

On his release, the respondent relapsed into drug use and gambling, which ceased for a short time upon the birth of his son in April 2018. Shortly thereafter, the respondent’s relationship with the mother of his son concluded, which, on the material before the sentencing judge, caused her to take the view that it led the respondent to another downward spiral and relapse.
On 7 April 2019, the respondent attempted to hang himself with a bed sheet in a shed on his property. It was thwarted by the respondent’s nephew who found him. Six weeks after that incident, the respondent was arrested for the present drug offences.
Because of the restrictions associated with the COVID-19 pandemic that operate in prison, the respondent only has video contact with his son. This occurs twice a week. There are no face-to-face visits. The report of Mr Ballardie notes that the respondent has reunited with his partner, but his partner did not give evidence before the sentencing judge.
The sentencing judge also referred to the continuing support of his sister with whom the respondent talks most days by telephone. Ms Boyd corroborated the history given to Ms Cullen and Mr Ballardie relating to the respondent’s childhood, as well as his attempted suicide. Her Honour described the respondent’s family and extended family as “supportive” [8] . At the time that the sentencing occurred, the respondent was on antidepressant medication.
8. ROS, at p 22; Appeal Book, at p 27.
Ms Cullen expressed the view that the respondent satisfied the criteria for PTSD, substance related disorder (ketamine), persistent severe gambling disorder, and body dysmorphic disorder relating to his steroid use. Ms Cullen suggested that the respondent has “good insight” [9] . At the time of his offending, according to Mr Ballardie, the respondent also met the criteria for a major depressive disorder and generalised anxiety disorder. Further, Mr Ballardie also diagnosed the respondent with PTSD, gambling disorder and drug use disorder. These diagnoses were accepted by the sentencing judge.
9. Ibid.
The sentencing judge also noted that the respondent’s moral culpability was impacted by his drug use, the genesis of which was his poor mental health arising from traumatic events that occurred throughout his life. [10] Her Honour then noted:

“That is not to say the general deterrence while moderated and indeed specific deterrence have no role to play in the sentence to be imposed, they do.” [11]
10. ROS, at p 23; Appeal Book, at p 28.
11. ROS, at p 23; Appeal Book, at p 28.

Her Honour obviously took the view that the moral culpability had been dramatically reduced by the nature of the respondent’s childhood, which was the cause of his drug use. In that sense, her Honour took the view that the drug use was not, in the true sense, “voluntary”.
Her Honour took the view that the poor mental health and drug use was relevant to the period of time in which the respondent was committing offences of supplying drugs, but less relevant to the assault, by which time the respondent had been an abstinent from drugs for about four months.
The Remarks on Sentence then refer to the report of Mr Ballardie dealing with the respondent’s insight into the difficulties he was facing. Mr Ballardie reported that the respondent considered his latest imprisonment to be “a blessing in disguise”, suggesting that he would otherwise have died either through an overdose or through suicide. [12]
12. Ibid.
The learned sentencing judge reported that Mr Ballardie expressed the opinion that the respondent’s risk of reoffending should be considered low because of his abstention from drugs, his mental health treatment and the positive relationships with his son and family.
The sentencing judge noted the recommendation of Mr Ballardie that the respondent undergo regular counselling and mental health treatment, a substance use program, and an assessment by a psychiatrist for medication consideration. There was also a reference to the benefit that would be received by Community Corrections’ close supervision upon release, and the need for a Mental Health Care Plan; counselling sessions; substance use counselling; psychiatric intervention; and other referrals to health professionals.
The sentencing judge then referred to the Sentencing Assessment Report, which assessed the respondent as a medium to high risk of reoffending because of his limited insight; failure to take responsibility; and, a history of antisocial behaviour, including institutional conduct charges involving either assault or fighting in custody. The sentencing judge noted that Mr Ballardie did not take into account the respondent’s long-standing association with negative influences and criminal associations.
The learned sentencing judge then dealt with remorse. Her Honour noted that the respondent may be genuinely remorseful but, because she had not heard from him in evidence and about his criminal history, her Honour was unable to make that finding positively. That inability to find that the remorse was genuine and/or that the respondent was remorseful was made, at least in part if not wholly, because the evidence of remorse was “hearsay material”. [13] Her Honour referred to the respondent’s letter to the Court concerning his background and how it was he come to be involved in the offences. The letter described the respondent as being very remorseful and noted that he had pleaded guilty at the earliest available opportunity.
13. ROS, at p 24; Appeal Book, at p 29.
There was also evidence from Mr Ballardie relating to the respondent’s insight into the damage that drugs did to people and the fact that his conduct would have had the result of distributing a significant amount of drugs and increasing or continuing drug use in the community. Apparently, the respondent described to Mr Ballardie that he felt some relief that the drugs that he supplied did not make their way into society, because they were supplied to Police. The respondent acknowledged to Mr Ballardie that what he did was wrong and said he regretted his behaviour. Mr Ballardie expressed the view that the respondent’s comments to him and the attitudes he displayed “were reflective of someone who had taken responsibility for his actions” [14] .
14. Ibid.
In his discussions with Mr Ballardie, the respondent did not attempt to justify or minimise the offending or express attitudes or beliefs that condoned or supported criminality. The sentencing judge noted that the respondent’s behaviour and attitude to Mr Ballardie was not consistent with the content of the Sentencing Assessment Report.
Despite the findings on remorse, the sentencing judge considered that the respondent was at an age that is often a crossroad in terms of criminal conduct, and acknowledged the respondent’s wish for a normal life with simple, achievable goals. The sentencing judge also noted the respondent’s desire to undertake both narcotics and gambling anonymous.
The sentencing judge noted that the respondent had applied himself in custody, apart from the matters already mentioned, and was presently motivated to move past his criminal associations and offending. The sentencing judge described herself as being “hopeful but realistically guarded as to his prospects of rehabilitation” [15] .
15. ROS, at p 26; Appeal Book, at p 31.
The Remarks on Sentence then deal with the requirement for parity with the co-offenders’ sentences, which, given the issues in these proceedings, is unnecessary to summarise. Nevertheless, the comments on parity by the sentencing judge are relevant to the roles played by the co-offenders involved in the criminal enterprise.
Her Honour then dealt with the principle of totality and determined that the drug supply offences involved significant overlap and common features, together with the temporal coincidence. Her Honour decided to impose an aggregate sentence with a “significant measure of concurrency” [16] .
16. ROS, at p 28; Appeal Book, at p 33.
Her Honour treated the assault occasioning actual bodily harm in company as a discrete offence that required a degree of accumulation, but also was required to be set, having regard to totality.
For all offences, her Honour allowed the 25% discount for the utilitarian value of a plea of guilty at the earliest possible opportunity. The indicative sentences that were set by her Honour are reflected in the table of offences included at [6] in these reasons.

Principles on Crown Appeal

Under the provisions of s 5D of the Criminal Appeal Act 1912 (NSW), which is exercised on behalf of the Crown by the Attorney-General or the Director of Public Prosecutions, the appeal is by right and leave to appeal is unnecessary.
It has often been remarked that Crown appeals should be exceptional and the right to appeal ought to be exercised rarely. The foregoing comment is directed at the Crown, not the Court.
Once that the Crown appeals against the sentence, it is the Court’s function to determine the matter in accordance with law. In doing so, the Court may no longer take into account, in the exercise of its discretion, the principle of double jeopardy. [17]
17. Crimes (Appeal and Review) Act 2001 (NSW), s 68A.
Even though the principle of double jeopardy may not be applied in determining the issues before the Court or any re-sentencing exercise, the Court has a “residual” discretion not to intervene, either to correct a sentence that is considered to contain an identifiable material error, or that is considered to be manifestly inadequate.
The term “residual” is a misnomer. The onus rests upon the Crown to persuade the Court that the appealable errors upon which it relies, and the circumstances of the appeal on the respondent, are such as to negate the exercise of the residual discretion to dismiss the appeal, notwithstanding error. [18]
18. CMB v Attorney-General (NSW) (2015) 258 CLR 346; [2015] HCA 9.
As has been stated, a sentencing judge possesses a wide discretion in the determination of the appropriate sentence for any particular offender. As a consequence, appeals against sentence (by either party) require the appellant to demonstrate error of the kind that warrants interference by an Appeal Court. [19]
19. CMB, supra, at [54].
The errors that permit an Appeal Court to intervene in the exercise of the sentencing discretion are either identifiable or manifest. An identifiable error is where the judge has acted upon a wrong principle; allowed extraneous or irrelevant matters to guide or affect the exercise of the discretion; mistaken the facts; or failed to take into account some material consideration. [20] If error of that kind is disclosed, the Appeal Court may exercise its own discretion in substitution for the sentencing judge.
20. House v The King (1936) 55 CLR 499; [1936] HCA 40.
A manifest error, on the other hand, is where the result of the exercise of the discretion by the sentencing judge is such that error cannot be identified, and it is not apparent how the result embodied in the sentence has been reached. Then, if the facts and circumstances relating to the offence and the offender show that the result is either “unreasonable” or “plainly unjust”, the Appeal Court may infer that there has been a failure to exercise the discretion properly, and an error of the kind that might otherwise have been identified has occurred.
When the Crown appeals the sentencing discretion exercised by the sentencing judge on the basis of “manifest inadequacy”, as is the situation in this appeal, there must be manifest error. Similarly, if an offender appeals on the basis of manifest excess, the same principles apply.
In other words, in this appeal, the Crown must establish that the sentence imposed upon the respondent is unreasonable or plainly unjust. [21] In order to find that the outcome of the sentencing discretion is unreasonable or plainly unjust, the Court must be satisfied that “there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”[22] Where error cannot be identified on the face of the reasons, and cannot be inferred from the result of the sentencing discretion, the Court is unable to intervene and unable to impose a different sentence. [23]
21. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54.
22. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58].
23. Leach v The Queen (2008) 183 A Crim R 1; [2008] NSWCCA 73 at [6] (Basten JA); Kane v The Queen [2021] NSWCCA 250 at [10]-[13] (Leeming JA and RA Hume J); Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10] (French CJ, Kiefel, Bell, Gageler and Gaudron JJ).
The residual discretion is underpinned by a difference in approach to appeals by offenders and those by the prosecution. An offender appeals against the sentence imposed upon him or her and the appeal is concerned with the correction of error in a particular case. Prosecution appeals are concerned with laying down principles for the guidance of sentencing courts. [24]
24. CMB, supra, at [54] and [55] (Kiefel, Bell and Keane JJ).
As a consequence, in a prosecution appeal, the Court is required to be convinced that correction of the error is necessary. The discretion exercised by the Court on appeal is “residual” only because it does not fall to be considered unless error has been established. [25]
25. Ibid; see also at [33] (French CJ and Gageler JJ).
Each of the principles flows from the “limiting purpose” of an appeal under s 5D of the Criminal Appeal Act, which, because it is a prosecution appeal, is intended to provide “a framework within which to assess the significance of factors relevant to the exercise of the discretion”. [26]
26. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at 477; [2011] HCA 49 at [36] (French CJ, Crennan and Kiefel JJ) (“Green & Quinn”); Griffiths v The Queen (1977) 137 CLR 293 at 310; [1977] HCA 44 (Barwick CJ).
As Barwick CJ commented in Griffiths, [27] in order for the Court of Criminal Appeal to intervene in a sentencing discretion on the basis of inadequacy, the inadequacy must be “indicative of error or departure from principle”. The passage continued to make clear that “consistency in the sentences imposed by the judges … is a desirable feature of criminal administration” and to include that aspect as a matter of principle.
27. Griffiths v The Queen, supra, at 310.
However, such a comment must be applied with the later comments of the High Court in Hili & Jones,[28] that consistency in sentencing is achieved by the consistent application of principle, rather than numerical equivalence. [29] Notwithstanding that qualification, it is the function of the Court of Criminal Appeal to ensure consistency in sentencing, and inconsistency in sentencing may bespeak error of principle.
28. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 (“Hili & Jones”).
29. Hili & Jones, supra, at [48]-[57].
It is probably more apt to refer to the “residual discretion” as a discretion to intervene or interfere, rather than to decline to interfere. The discretion to intervene on appeal is a discretion that may be exercised only in circumstances where the Crown has demonstrated the need to establish some matter of principle and to afford an opportunity for the Court to perform its proper function in this respect; namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. [30]

Submissions

30. CMB, supra, at [35] (French CJ and Gageler J) citing, with approval, comments of Heydon JA in R v Hernando (2002) 136 A Crim R 451 at 458; [2002] NSWCCA 489 at [12]; and Green & Quinn, supra, at CLR 477, [36].

Crown Submissions

The Crown submits in this appeal that the sentence imposed by her Honour is unreasonable or plainly unjust and, in that description, falls within the final category of House v The King error.
Essentially, the Crown submits that the sentence fails to reflect the respondent’s objective criminality. The Crown emphasises that the Court needs to provide accurate guidance to ensure that sentences for supplying large commercial quantities of prohibited drugs adequately reflect the maximum penalty and standard non-parole period that the legislature has prescribed. As is well established, the maximum penalty and standard non-parole are guideposts for a sentencing judge in fixing an appropriate sentence.
Further, the Crown submits that the Court could conclude that the sentence is “an affront to the administration of justice” and risks undermining public confidence in the criminal justice system. [31] The Crown submits that it is necessary to ensure considerations of objective seriousness, and general and specific deterrence are given appropriate weight.
31. Green & Quinn, supra.
In respect of the sentencing judge’s assessment of objective seriousness, the Crown submits that her Honour did not explain the basis on which she concluded that each of the offences were below, or about, the mid-range of objective seriousness. The Crown submits that, in that respect, her Honour was in error, and each of the drug supply offences fell comfortably within the mid-range of objective seriousness, with Sequence 12 nearer the top of that range or above.
Over and above the foregoing, the Crown submits that, even if the Court were not to determine a different objective seriousness, the offences are nonetheless manifestly inadequate. In that regard, the Crown relies upon factors that include that: the respondent was on conditional liberty at the time of the offending; and, even though the need for general deterrence was moderated on account of a reduction in moral culpability, considerations of specific deterrence were still applicable.
While the Crown concedes that the respondent has a “good subjective case”, the Crown submits that the subjective factors should not overwhelm the objective seriousness of the offences. Further, the Crown notes that her Honour declined to find remorse and found guarded prospects of rehabilitation.
The Crown submits that her Honour double-counted the factors that were used to find special circumstances and, as a consequence, to reduce the non-parole period. The Crown submitted that her Honour had previously taken those factors into account with respect to the head sentence.
Lastly, the Crown submits that the indicative sentences established by her Honour are consistent more with sentences imposed upon “couriers or warehousemen” in prohibited drugs cases, not on offenders found at least to be a mid-level drug dealer.
Should the Court determine that error has occurred, the Crown submitted that, on re-sentencing, the Court should make findings different to those made by the sentencing judge. In particular, the Crown submitted that the respondent’s drug abuse should not be found to be causally related to his offending.
Secondly, the objective seriousness of the offences should be found to be in the mid-range, rather than below mid-range. Thirdly, the respondent’s moral culpability should not be reduced because of his use of drugs.
The Crown has relied on the Report of the psychologist, Mr Ballardie, and the evidence of Mr Ballardie in the course of cross-examination, to support different findings, were the Court to be resentencing.
The Crown submitted that the opinion of Mr Ballardie was formed on the basis of examination of the respondent over nine consultations over the telephone. Her Honour found, on the basis of the evidence, that there had been 12 treatment sessions overall and, while it has not been made absolutely clear, it seems that the Crown’s submission is based upon the number of consultations prior to the formation of the opinions expressed in the report. However, those opinions were confirmed in the evidence given during the sentencing proceedings.

The Crown points to Mr Ballardie’s concessions that the respondent’s motivation for the index offending was, at least in part, financial (which has been made clear in the summary of the Remarks on Sentence) and that he could not exclude the possibility that the respondent engaged in supplying drugs for criminal purposes. It is not absolutely clear how engaging in the supply of illicit drugs for financial gain can be other than for criminal purposes.
Next, the Crown relies upon what it submits is evidence of conjecture by Mr Ballardie; in particular by his use, during the course of his evidence, of expressions, such as “I suppose” and “I guess” and “yes, why not?”.
On the Crown’s submission, it is clear that Mr Ballardie fell back on the respondent’s drug use to explain the link between his mental conditions and his offending. In that regard, the Crown points to the uncertainty that surrounds the respondent’s use of ketamine and its effect.
The Crown submits that, even if there were a causal link between the use of ketamine and the respondent’s offending, the uncertainty should be enough to result in different findings as to the objective seriousness or moral culpability. Further, Mr Ballardie, on the Crown’s submission, did not seek the answers to fundamental issues such as the respondent’s criminal associations. Nor, it is submitted, did Mr Ballardie apply any tests to the respondent as to whether he was malingering.
Over and above the foregoing, the Crown submits that Mr Ballardie’s opinion as to the respondent’s risk of reoffending and the causal link are caused by the respondent’s inaccuracy in the history he gave to Mr Ballardie as to the timing of the breakup between the respondent and his partner.
In this regard, the Crown relies upon discrepancies in the timeline of events provided by the respondent, including the date of separation between the respondent and his partner, which, it was said, precipitated the respondent’s “downward spiral” [32] . The timeline provided by the respondent in the sentencing proceedings was inconsistent with the timing provided to Ms Cullen, Mr Ballardie and Ms Boyd.
32. ROS, at p 22; Appeal Book, at p 27.
The Crown submits that the sentencing judge’s acceptance that the respondent attempted to commit suicide on 7 April 2019 is inconsistent with the evidence from his sister.
The Crown further submits that the respondent’s unreliable account of the circumstances of his offending caused the sentencing judge incorrectly to attribute the cause of the respondent’s drug supply to be his upbringing and disorders, including his drug disorder. In the respondent’s unsworn letter to the sentencing judge – which the Crown submits should not be accepted by the Court as unsworn testimony in any event – the respondent accounted for his commencing to supply drugs by describing pressure applied on him by a former prisoner. In this respect, the Crown submits that the respondent’s account does not explain the respondent’s ability to procure such a large and varied quantity of prohibited drugs.
Lastly, the Crown submits that the Court should exercise its residual discretion to intervene and to resentence, because the Court should come to findings of fact that are different from those of the sentencing judge. The Crown emphasises the need to achieve a high level of consistency in sentencing for drug-related offences. In that respect, the Crown is referring to numerical consistency.
The Crown provided a list of sentences that have been imposed in situations that the Crown submits are comparable to the current circumstances.

Respondent’s Submissions

The respondent, in response to many of the submissions of the Crown, counsels that the Court should read the sentencing judge’s reasons as a whole, rather than in a piecemeal fashion. The respondent points to the fact that her Honour had regard to the various factors that inform the seriousness of any drug supply matter and considered the entirety of the respondent’s role in the offending across the relevant period. In particular, her Honour took into account the number of transactions, the quantity of drugs, the level of purity relating to each charge and the role of the respondent.
On the respondent’s submission, her Honour identified every objective consideration that was required, or that was relevant, and the Crown does not identify any objective consideration that is either wrongly taken into account or ignored by the sentencing judge. Nor, it is submitted, can the Crown point to any approach of her Honour that did not have regard to the relevant principles.
In those circumstances, unless the Court determines that the assessment by her Honour of the objective seriousness of each offence was an assessment that was not open on the findings of fact, there is not demonstrated an error of the kind that permits the Court to intervene; at least to the extent that such intervention relies upon identifiable error.
Relying on the assessment of the respondent’s role in the offending by her Honour, the respondent submits that any more serious assessment of the objective seriousness would not be justified. On the other hand, the respondent submits that, contrary to the implicit suggestion of the Crown, the approach of her Honour to the respondent’s objective circumstances reflected a sympathetic, yet discerning, attitude, which was supported by the evidence by which her Honour was informed.
Further, the respondent submits that the findings in respect of a reduction in the respondent’s moral culpability and the need for general deterrence, were well open on the evidence and different findings ought not to be made by this Court, were it to proceed to resentence.
Next, the respondent submits that the finding of special circumstances was open to the sentencing judge, particularly in the circumstances that the respondent’s history gives rise to a real risk of institutionalisation. Her Honour did not engage in double counting in relation to special circumstances. Rather, her Honour had appropriate regard to the purposes of sentencing, on the one hand, and the need to promote the respondent’s rehabilitation, which forms part of those purposes.
In general, the respondent submits that the sentence imposed is not manifestly inadequate, having regard to the discount of 25% for the utilitarian value of the plea of guilty; her Honour’s careful assessment of the objective gravity of each offence; the respondent’s history of trauma, drug use, and adverse mental health, which legitimised a de-emphasis on punishment; the moderated emphasis of general deterrence in the case of the respondent; and, the adequate addressing of specific deterrence of the respondent, particularly in respect to his involvement in the life of his son.
The respondent submitted that her Honour had careful regard to parity, which informed the sentence to be imposed upon the respondent. The mere fact, if it were the fact, that this Court may, if it were exercising the sentencing discretion, have given greater weight to deterrence and less weight to the respondent’s subjective case, does not enliven the Court’s authority to intervene. The high maximum penalties and standard non-parole periods are, ultimately, yardsticks and do not, and should not, cause the sentencing judge to overlook individual circumstances.
The respondent also put submissions on regarding the Court’s residual discretion, submitting that the Court should not exercise the discretion to intervene, even if it were to come to a conclusion that the sentence imposed was manifestly inadequate. The respondent relies, in that regard, on the psychological vulnerabilities (of which there is evidence), compounded by the difficulties caused by COVID-19, together with the possible effect that a disruption to the sentence may have on the respondent’s motivation to continue to rehabilitate.
The foregoing is supported by an affidavit of the respondent, affirmed 5 May 2022, in which the respondent attests to certain information about his activities in custody; his ongoing engagement with his psychologist; the support of his sister; and, the impact that lack of access to his son has had on him.
The respondent attested to the effect of the strong support of his family, in particular his sister, to whom he speaks daily, as well as the negative psychological effect of the Crown appeal. The respondent also attests to his level of remorse, and the effect of his sister’s evidence during the sentence proceedings on his understanding is to the amount of pain through which he has put her and the rest of his family.

Principles of sentencing

Every judicial officer who is required to sentence an offender faces the difficult task of marrying the objective circumstances of the offence and the subjective circumstances of the offender to achieve a just result that best achieves the purposes of sentencing, bearing in mind the guideposts of the maximum sentence prescribed by the legislature and, if there be one, any standard non-parole period. The task has been described as intuitive synthesis or instinctive synthesis and principle does not allow for the multi-staged approach of fixing a standard sentence and subtracting or adding to this sentence, depending upon the relevant circumstances.
One of the fundamental difficulties associated with the task is that the purposes of sentencing often point in different directions. [33] In Veen (No 2), the High Court said:

“However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”^[34]
33. Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14.
34. Veen (No 2), supra.

The purposes of sentencing established by the common law, and recited in the foregoing passage, are now prescribed by the legislature in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The statutorily prescribed purposes add particulars to the statement of the purposes in accordance with the common law and include: ensuring that the offender is adequately punished; preventing crime by deterrence of the offender and other persons; protecting the community from the offender; promoting the rehabilitation of the offender; making the offender accountable for his or her actions; denouncing the conduct of the offender; and, recognising the harm done to the victim of the crime and the community. [35]
35. Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A.
It is necessary to emphasise, as has the High Court, that there is no single correct sentence; any sentence within the available range for the offence and the offender is correct. While a sentence that is imposed is required to fall within the range of sentences that is appropriate for the offence and the offender, the range of sentences is not determined by examining only the objective circumstances of the offence. Nor, as stated, is the range of sentences the same as the pattern of sentencing that has occurred in the past.
In Hili & Jones, supra, the High Court cited with approval the judgment of Simpson J and stated:

“[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: ‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.’ But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’ (emphasis added). When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned’.”[36] (Footnotes omitted.)
36. Hili & Jones, supra, at CLR 537, [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), citing Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28 at [98]; [2010] NSWCCA 194 at [303]-[305].

Further, manifest inadequacy (or excess) is a conclusion derived from an examination of the objective circumstances pertaining to the offence and the subjective circumstances of the offender. The conclusion is not available, by an examination of one only of the objective or subjective circumstances.
The other aspect that requires noting, prior to dealing with the detailed issues on the appeal, is the process of fact-finding. In sentencing proceedings, conclusions of fact that are to be used against an offender, or by the Crown, if that be different, are required to be determined beyond reasonable doubt.
On the other hand, conclusions of fact upon which the offender relies are capable of being determined on the balance of probabilities, which is the lower civil standard. Lastly, the determination of objective seriousness is a conclusion and is an evaluation of the facts otherwise determined by the sentencing judge.
In dealing with a challenge to the conclusion as to objective seriousness, the Court is required to apply the tests recited previously in these reasons and may intervene only where there has been error of the kind that would allow intervention in an exercise of discretion, being the test in House v The King.
In a case such as this — where a judicial officer has sentenced on the basis of findings of fact that are challenged by the Crown — in order for the Court to overturn the finding of fact and find in accordance with the facts as submitted by the Crown, it would be necessary to determine that the facts, as found by the sentencing judge, were not open on the evidence before the Court.
If the facts, as determined by the judicial officer at first instance, form a hypothesis open on the evidence before the Court, then the Crown has not satisfied the burden of proving the facts upon which it seeks to rely beyond reasonable doubt.

Consideration

As already outlined, the drug offences with which the respondent was charged and to which the respondent pleaded guilty are serious offences. There can be little doubt that the respondent was engaged in a drug supply operation for the period of time to which the charges relate.
Further, the respondent was certainly not at the lowest level of the drug operation, and was at a level higher than a courier. Nor, it should be added, does it seem that the respondent was at the highest level in the operation.
As the sentencing judge determined, the respondent was “well involved in the business of supply of drugs”; [37] “can be described as at least a mid-level drug dealer”; [38] and, that “his motivation was a financial one”. [39]
37. ROS, at p 13; Appeal Book, at p 18.
38. ROS, at p 14; Appeal Book, at p 19.
39. ROS, at p 14; Appeal Book, at p 19.
The operation included the supply of MDMA, methylamphetamine, amphetamine and ephedrine. In that respect, even though it was seemingly one course of conduct, it was, within the drug supply business, reasonably sophisticated.
The Crown’s submission is that her Honour did not explain why she found that the objective seriousness of all of the offences, except for Sequence 12, were below the mid-range. For Sequence 12, the supply of the 4kg of MDMA, her Honour determined that it was at the mid-range, but did not specify where in the “mid-range” the offence fell.
However, as already explained, the determination of objective seriousness is a conclusion. Once the facts are noted, it is not obvious what other reasons are needed.
No issue was taken with the primary facts upon which her Honour relied in coming to that conclusion. The difference between the Crown’s submission, namely that each of the drug supply offences fell comfortably within the mid-range of objective seriousness, and the finding of her Honour, may be a matter of semantics. On any analysis of the facts found, the conclusion was plainly open to her Honour.
It is important to understand that the “typical” or “common” case is not necessarily representative of the offence which is to be considered as falling in the mid-range of seriousness. [40] Further, the mid-range offence is not necessarily one that is “typical” of the offence charged in the relevant provision. Further, again, “mid-range” is not a narrowband within the continuum between least serious and the category of case that requires the maximum sentence. [41]
40. R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 (Spigelman CJ; Wood CJ at CL and Simpson J).
41. Ibid, at [100]; see also Edmonds v R [2022] NSWCCA 103 (Dhanji J, with whom Macfarlan JA and Rothman J agreed).
Sequence 12 carries a maximum sentence of life imprisonment and a standard non-parole period of 15 years. So too do Sequences 7, 18 and 19. Nevertheless, for Sequence 12, the most serious of the offences, her Honour set an indicative sentence of the head sentence of 5 years and a non-parole period of 3 years and 2 months.
There are two aspects to which it is necessary to refer in dealing with a sentence fixed for a mid-range offence, or an offence that is below or just below mid-range. First, statistics as to the pattern of sentencing may be useful as a check against that which a sentencing judge considers appropriate, but it does not determine the range of sentences that may be imposed.
Statistics are, necessarily, a self-fulfilling limitation. Were statistics to be followed, then, to the extent that an offence was within in the worst category and no prior sentencing judge had imposed the maximum sentence, the maximum sentence could never be imposed.
The difference is the distinction that must be drawn between the pattern of past sentencing and the range of sentences that are available. The range of sentences available to use, as already stated, consists of a range that is applicable to a consideration of the objective seriousness and the subjective circumstances.
The passage, earlier recited from Hili & Jones, supra, makes clear that past sentences do not establish that the range evidenced by those past sentences is the correct range. Nor does it establish the upper or lower limits are the correct upper and lower limits, given the objective and subjective circumstances with which a sentencing judge is then dealing.
Moreover, every sentence that has been imposed in the past depends very much on the objective circumstances of the offending; the role of the offender in that offending; and, the subjective circumstances of the offender. In the absence of an analysis of each of the previous judgments with an eye to those aspects, the previous sentence does not dictate or influence the sentence that is required to be imposed.
The Crown also has relied upon a summary of comparable cases. The first of them involved an offender who was said to be closer to the top of the drug hierarchy than the bottom. [42] The objective seriousness of the offences was found to be just below the mid-range and, while the offender had a severe drug abuse disorder, the subjective circumstances were not otherwise in the category of the current respondent.
42. R v Kazzi [2008] NSWCCA 77.

In Cullen,[43] the Court found that the offender had been “plainly a large-scale drug dealer” and an end supplier. He supplied over 11kg of gamma-Butyrolactone; just under 1kg of 3,4-methylenedioxymethylamphetamine (MDMA) and methylamphetamine. The drugs were found in his possession. He was also found guilty of the supply over 2kg of ketamine.
43. Cullen v R [2014] NSWCCA 162.
The offender had no prior convictions, had a difficult upbringing, and was a manic-depressive and a drug user. Nevertheless, his subjective circumstances, again, were not in the category of the current respondent.
In Thomson, [44] the large commercial quantity was less than that supplied by the respondent and the offender was sentenced at the same time, for a separate Commonwealth offence of conspiracy to import, which offence was made concurrent. On appeal, the concurrency was said to be in error and there was partial accumulation.
44. R v Thomson [2016] NSWCCA 56.
However, the aggregate sentence imposed for the State offences were for possession of a prohibited weapon and two counts of supply of a large commercial quantity, one of which was taken into account with the prohibited weapon offence as a Form 1. The importation offence, which carried life imprisonment as a maximum, had imposed a head sentence of 13 and a half years. The prohibited weapon and large commercial supply of methylamphetamine involved an aggregate sentence of 9 years, with a 6-year non-parole period, for which the indicative sentences were 8 years for the drug offences and 2 years and 6 months for the firearm offence.
While the offender in Thomson had a difficult upbringing, his subjective circumstances were not in the same category as the current respondent, even though he had abused alcohol and drugs from an early age. Nevertheless, despite the urging of the Crown in Thomson, the Court determined that the sentence for the State offences (based upon an indicative sentence for the drug supplier of 8 years) was not inadequate.
The offender in Dunshea [45] was sentenced to imprisonment for 8 years, with a non-parole period of 5 years (being the sentence imposed on appeal). The Court determined that the sentence initially imposed should be reduced. A second offence of supply of a large commercial quantity was subject to a sentence of 6-years with a 4-year non-parole period.
45. Dunshea v R [2016] NSWCCA 244.
The offender Shi [46] was sentenced to a 10-year term of imprisonment, with a 7-year non-parole period for a large commercial supply, which was in five separate supplies, arranged by the offender with those above him, and carried out by a co-offender. There was 2.54kg of methylamphetamine. There were no subjective circumstances of which the Court is aware. The Court imposed a 6-year term of imprisonment, with a 4-year non-parole period, on the offender, Chong, reducing the sentence originally imposed.
46. Shi v R [2017] NSWCCA 183.
The Court in Huang [47] reduced the sentence imposed for involvement in the supply of 15kg of illicit drugs (ephedrine) to a 7 years and 6 months head sentence, with a non-parole period of 5 years and 3 months (taking account of a 25% reduction for the utilitarian value of a plea of guilty).
47. Huang v R [2017] NSWCCA 312.
R v Yiu; R v Yau, [48] the Court granted a Crown appeal and sentenced each of the offenders, who were acting as “brokers” (above the level of courier), to a sentence of 6 years imprisonment, with a non-parole period of 4 years, each having received an original sentence of 3 years with a non-parole period of 2 years after a 25% reduction for the plea at first instance. In the case of each of these offenders, there were no substantial or comparatively similar subjective circumstances, as is the case with the respondent. Each of them had a co-offender who was sentenced, again after a 25% discount, to a sentence of 9 years’ imprisonment with a non-parole period of 6 years and whose sentence appeal was dismissed. This Court did not resentence and there was no ground of appeal alleging manifest excess. The grounds of appeal were disparity and failure to find remorse, each of which was dismissed. [49]
48. R v Yiu; R v Yau [2018] NSWCCA 155.
49. Piao v R [2019] NSWCCA 154.
The Court, dealing with an appeal by the offender Abdul,[50] dismissed leave to appeal in circumstances where the offender, after a discount of 25% for the early plea, was sentenced to an aggregate sentence of 12 years and 6 months, with a non-parole period of 9 years. In that case the offender had been found to be “the entrepreneurial spruiker”, who was negotiating prices, quantities, and offering discounts for bulk and involved in other arrangements. Notwithstanding his youth (he was between 20 and 21 years of age), he was sentenced “as an adult” because he was operating as one, and the offences were of such a quality.
50. Abdul v R [2019] NSWCCA 18.
Further, he was sentenced to an aggregate sentence which included supply of an indictable quantity of amphetamine (indicative sentence of 2 years and 6 months); supply of a large commercial quantity (6.2kg of MDMA) (indicative sentence of 10 years and 6 months); supply of a commercial quantity (just under 0.5kg of cocaine) (indicative sentence of 5 years); and, supply of a large commercial quantity of MDMA (1.1kg) (indicative sentence of 6 years with a non-parole period of 4 years). He was also sentenced, at the same time, for knowingly direct the activities of a criminal group for which the indicative sentence was 5 years.
His co-offender, who was convicted of supplying quantities to Abdul was sentenced to an aggregate sentence of 9 years and 9 months, with a non-parole period of 6 years and 9 months after a successful appeal. This was for the offences of supply of a large commercial quantity (three counts), supply of a commercial quantity (two counts), supply (two counts) and recklessly deal with the proceeds of crime (about $83,000). [51] In neither case were the subjective circumstances of the nature of those relating to the respondent.
51. Assam v R [2019] NSWCCA 12.
This Court also considered the sentence imposed on the offender, Matu. [52] The offender was a runner or driver for the aforementioned offender, Abdul. He was paid approximately $1,000 per week. He was sentenced for one count of supply of a large commercial quantity (2.4kg of MDMA) (indicative sentence 6 years, with a non-parole period of 4 years) and supply (115.4g of cocaine) (indicative sentence of 3 years and 6 months) to an aggregate sentence of 7 years with a non-parole period of 4 years and 6 months. On appeal, the commencement date of the sentences was varied.
52. Matu v R [2019] NSWCCA 23.
In Jackson,[53] after receiving a reduction of 25% on account of an early plea of guilty, the offender was sentenced to an aggregate sentence of 9 years, with a non-parole period of 5 years and 6 months for: supply of a large commercial quantity (over 500g of MDMA) (including a Form 1 that included supply of a commercial quantity of MDMA and seven charges of possessing a prescribed restricted substance); an offer to supply of a large commercial quantity (1kg of MDMA); and, knowingly deal with the proceeds of crime ($67,550) (for which the indicative sentences were respectively 8 years, 8 years and 12 months). Again, there were no comparable subjective circumstances associated with the offender. On appeal — which raised the issues of the application of aggravating factors in s 21A of the Crimes (Sentencing Procedure) Act — which was upheld, the Court took the view that no lesser sentence was warranted in law.
53. Jackson v R [2019] NSWCCA 101.
The offender See [54] was sentenced to an aggregate sentence of 8 years with a non-parole period of 5 years for the offences of supplying methylamphetamine (231g) (taking into account three offences of supply on a Form 1) (indicative sentence of 3 years); knowingly deal with the proceeds of crime ($27,850) (indicative sentence of 1 year); knowingly take part in supply of a commercial quantity (methylamphetamine) (499.8g) (indicative sentence of 4 years); knowingly take part in supply of a large commercial quantity of MDMA (1kg) (indicative sentence of 5 years); and a number of weapons offences on a s 166 Certificate for which indicative sentences were 6 months each. The aggregate sentence was imposed after allowing a 10% reduction for a plea of guilty. The offender had a disadvantaged background, but, again, not to the same extent and not involving the circumstances of the kind suffered by the respondent. The offender was, effectively, a first offender.
54. See v R [2020] NSWCCA 272.
The next case upon which the Crown relies related to the offender McKinnon. [55] In that case, the offender negotiated two supplies of drugs, supplied by a co-offender, and was paid $237,700 in cash. The offender was directly involved in negotiating the price and quantity, and the drug supplied was MDMA.
55. McKinnon v R [2020] NSWCCA 106.
There was a degree of sophistication in the offending, and there were no serious subjective factors other than that the offender was paying off a drug debt and the onerous custodial conditions associated with COVID-19 (the latter applying, nowadays, to every prisoner). After a 25% discount for a plea of guilty and a successful appeal, the offender was sentenced to an aggregate term of 8 years’ imprisonment with a non-parole period of 5 and a half years for two counts of supply of a large commercial quantity of MDMA (2.4kg and 2.5kg) with the possession of cash as the proceeds of crime and the possession of steroids on Form 1. The offences were given indicative sentences of 5 years, with 3 years and 9 months and 6½ years with 4 years and 4 months respectively.
The offender Tamer [56] was also sentenced for the supply of a large commercial quantity of methylamphetamine and other offences, including five offences of drug supply and possession of the proceeds of crime on a Form 1. After a successful appeal, the offender was sentenced to an aggregate term of imprisonment of 7 and a half years with a non-parole period for 4 and a half years. This included a reduction of 25% for the plea of guilty.
56. Tamer v R [2020] NSWCCA 333.
The circumstances that pertained to the offender, Tamer, involved 22 occasions on which the offender supplied quantities of methylamphetamine, mostly to end-users. He received $137,000 as a benefit from the supply, and it was a relatively sophisticated organisation in which he was pivotal. There were no significant subjective circumstances other than his drug addiction and the fact that he left home prematurely and became estranged from his family. The other issue, taken into account on resentencing, was the offender’s youth.
Ordinarily, little can be gained from the dismissal of an appeal other than that the original sentence was within range; assuming, as I do, that in most such circumstances, manifest excess or inadequacy has been a ground of appeal. That is not the case in circumstances where the Court dismisses the appeal on the basis that no lesser sentences is warranted in law. That was the circumstance that pertained to the offender, Naberezhnov [57] .
57. Naberezhnov v R [2021] NSWCCA 142.
The offender was sentenced for the ongoing supply of cocaine (193.8g) (indicative sentence 4 years and 6 months); supply of over a large commercial quantity of MDMA (2.28kg) (indicative sentence 9 years with a non-parole period of 6 years and 6 months); and, supply of MDMA (95.5g) (indicative sentence of 4 years and 10 months). The aggregate sentence was 12 years with a non-parole period of 8 years.
There were no substantial or comparable subjective circumstances. Despite the fact that the Court, on appeal, took the view that the offer to supply a large commercial quantity of MDMA was lower than the mid-range of objective seriousness and upheld that ground of appeal, the Court considered no lesser sentence was warranted.
Lastly, amongst the cases relied upon by the Crown, is the circumstances of the offender Faraj [58] . In that case, the offender conducted a drug dealing business from his own apartment and had slim prospects of rehabilitation. The offender appealed and his appeal was dismissed.
58. Faraj v R [2022] NSWCCA 31.
The offender, in the sentence appeal, relied upon what was said to be an error of fact amounting to the number of tablets supplied and the assessment that the offender’s prospects of rehabilitation were slim. He was sentenced after trial for six offences: supply of a large commercial quantity of MDMA (indicative sentence 9 years, with a 6-year non-parole period); supply of a commercial quantity of MDMA (indicative sentence 7 years, with a 5-year non-parole period); another count of supply of a large commercial quantity of MDMA (indicative sentence 9 years’ imprisonment with a 6-year non-parole period); supply of MDMA (72.2g) (indicative sentence of 3 years); supply of 4.82g of ice (indicative sentence 18 months); and, possession of proceeds of crime (approximately $40,000 – a watch bought in cash from a jewellers) (indicative sentence 2 years and 6 months). The aggregate sentence imposed was 13 years, with a non-parole period of 9 years. The appeal was dismissed.
As is clear from the authorities, no two offenders and no two offences are identical. Thus, sentencing an offender for a particular offence is, almost by definition, the application of unique factors. The combination of circumstances pertaining to this sentencing exercise is also unique.
The sentencing judge, who is an experienced sentencer, was faced with a 38-year-old offender who had spent large portions of his life in prison. Her Honour took the view — in my view, correctly — that the respondent had reached a fork in his life and was genuinely seeking to start a crime-free lifestyle.
There are sometimes issues associated with the institutionalisation of offenders that a sentencing judge is required to consider when passing sentence. This was such a case.
As already stated, the respondent satisfied the criteria for PTSD, substance related disorder (ketamine), persistent severe gambling disorder, and body dysmorphic disorder relating to steroid use. He had good insight. These were the subject of Report from a Forensic Psychologist and accepted by the sentencing judge. Frankly, the PTSD is unsurprising.
The respondent had a deprived background. His parents separated when he was six and his father spent significant periods in gaol. His father was described as controlling and as an alcoholic. Both psychological Reports expressed acceptance of that view, as did her Honour.
The respondent was subject to sexual abuse at the age of seven. He was introduced to gambling by his father at the age of 11 and was, from the age of 14, gambling on his own through the use of a false proof of age card. He left school in Year 8, and he has misused and abused drugs from the age of 11.
His drug abuse commenced with cannabis and progressed to the use of ketamine. During the course of submissions on appeal, the Crown expressed the view that there was no expert evidence on the effect of ketamine. Insofar as that submission goes, it is accurate.
There is also no expert evidence on the effects of MDMA, ice, cannabis, and most other drugs that offenders have abused. The learned sentencing judge is extremely experienced and would deal with drug issues on a daily basis.
Even in this Court, ketamine is a known substance and its effect well-known. It is a hallucinogen, like LSD (lysergic acid), which causes amnesia and was, therapeutically, used as an anaesthetic in operations. It is fairly obvious that the respondent was “self-medicating”.
Ordinarily, the voluntary use or abuse of drugs is not an ameliorating factor in the sentence to be imposed. Like alcohol, where drugs are consumed voluntarily, it is the responsibility of the consumer to understand its effect.
Nevertheless, where, as here, drugs are used to self-medicate from an abusive and deprived childhood, and other traumatic experiences in life, it can hardly be said that the abuse of drugs is “voluntary”, in the ordinary use of that term. In a case such as the present — where the respondent is judged to be at “the crossroads” and where, on the material, it seems that the respondent’s addiction is not a matter of personal choice, but arises from the circumstances of his PTSD and other issues, and has been in existence for a significant period — the Court is entitled, notwithstanding the provisions of s 21A(5AA) of the Crimes (Sentencing Procedure) Act to take into account the ketamine abuse insofar as it affects the state of mind of the respondent, his capacity to exercise judgement, and his prospects of recidivism and/or rehabilitation. In Henry, [59] Wood CJ at CL said:
59. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.

“[273]    In my view the relevant principles are as follows:
(a)    the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;
(b)    however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
(i)    the impulsivity of the offence and the extent of any planning for it; (cf Bouchard (1996) 84 A Crim R 499 at 501-2); and Nolan (1988) VSCA 135 (2 December 1998);
(ii)    the existence or non existence of any alternative reason that may have operated in aggravation of the offence, eg that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;
(iii)    the state of mind or capacity of the offender to exercise judgment, eg if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

(c)    It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:
(i)    impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword (eg Lewis Court of Criminal Appeal New South Wales 1 July 1992);
(ii)    suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf Hodge Court of Criminal Appeal New South Wales 2 November 1993; and Talbot ); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;
(iii)    justify special consideration in the case of offenders judged to be at the ‘cross roads’: Osenkowski (19882) 5 A Crim R 394.”[60]
60. Ibid, at [273] (Wood CJ at CL, with whom Spigelman CJ, Newman, Hulme and Simpson JJ agreed).

Further to the foregoing, Simpson J, in Henry said:

“[348] I agree that the principles stated by Wood CJ at CL in paragraph 273 of his draft judgment are the principles that emerge from the authorities. To them, I would add that not all drug addicts are necessarily to be taken to have brought themselves to addiction and criminality with the same degree of foresight, determination, informed decision making, and consequent moral culpability. To impute those qualities to every decision to take drugs is to ignore the important starting point, the reasons underlying the initial drug use.”[61]
61. Ibid, at [348] (Simpson J).

The provisions of s 21A(5AA) of the Crimes (Sentencing Procedure) Act, while introduced after the judgment in Henry, do not affect the application of the foregoing principles. As expressed by Simpson J, the issues relate more to the degree to which the intoxication, if it were intoxication, is “self-induced” and/or “voluntary”.

That which is, in my view, most important in the consideration of this appeal is the determination by her Honour that the respondent expressed views and was at an age that is often a crossroads in terms of reoffending. The term “cross roads” was also utilised by Wood CJ at CL in the passage recited above.
In Osenkowski,[62] the South Australian Court of Criminal Appeal dealt with a Crown appeal as to manifest inadequacy for drug supply. In the course of the comments, King CJ noted that the sentence imposed was “undoubtably less than the standard which has become established”, referring, no doubt, to numerical equivalence.
62. R v Osenkowski (1982) 5 A Crim R 394.
The learned Chief Justice went on to say the following:

“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”[63]
63. Ibid, at 394 (King CJ).

No doubt, it was to the foregoing passage that his Honour Wood CJ at CL referred, with the agreement of the other four judges, in Henry, on the question of “crossroads”.
Apart from the subjective elements to which reference has been made, and the respondent’s attempted suicide, he has, since his last incarceration, been free of drugs. He has expressed the view that he wishes to lead a normal life with simple, achievable goals and, a motivation for that, accepted by her Honour, was the desire to care for his young son.
There was evidence before her Honour, from the respondent through his psychologists, that he accepted responsibility for his offending, and acknowledged the injury, loss and/or damage caused by his offending. The circumstance that the respondent did not give evidence is a matter going to the weight of the expression of remorse. [64]
64. Devaney v R [2012] NSWCCA 285 at [88] (Allsop P); Lloyd v R [2022] NSWCCA 18 at [46]-[47] (McCallum JA, with whom Hamill and Cavanagh JJ agreed).
In Lloyd, supra, McCallum JA (as her Honour then was) — after reciting the passage from the judgment of Allsop P in Devaney, supra — said:

“[47] I would particularly endorse his Honour’s observation that care needs to be taken not to exclude admissible evidence ‘by a process going beyond an assessment of weight’. Where the report of a mental health professional is admitted without objection, qualification as to its use or cross-examination of the author, no principle of law requires the sentencing judge to exercise ‘very considerable caution’ before relying on its contents absent evidence from the offender. It is by no means beyond debate that the court is the only forum in which a reliable medical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance.”[65]
65. Lloyd, ibid, at [47].

Notwithstanding the foregoing comments, Her Honour was not prepared to accept that the respondent was genuinely remorseful, having regard to his criminal history and the circumstance that he did not give evidence. That course was open to her Honour, even though that finding was to be made on the balance of probabilities.
It is necessary to deal with a number of the issues raised as matters of detail in the submissions. I have already recited the purposes of sentencing and the difficult task of a sentencing judge in imposing a sentence that reflects those purposes. One of the issues raised by the Crown is the proposition that the respondent’s good subjective case ought not overwhelm the objective seriousness of the offences.
The submission complements the further submission that her Honour double-counted the factors taken into account in determining that there were special circumstances — thereby reducing the statutorily prescribed ratio for the non-parole period — with the factors taken into account with respect to the head sentence. Principle has determined that the non-parole period should not be set for the sole purpose of allowing the assessment of parole so as to assist the prospects of rehabilitation. [66]
66. Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 (“Bugmy No 1”) (Dawson, Toohey and Gaudron JJ); Power v The Queen (1974) 131 CLR 623; [1974] HCA 26.
The purpose of a non-parole period is the fixing of the minimum term necessary for the achievement of the purposes of sentencing, giving greater weight to rehabilitation through conditional freedom, when appropriate, but only after the offender has served the minimum term determined by the judge to be that which justice requires, having regard to all of the circumstances of the offence. [67] As the majority made clear in Bugmy No 1, the non-parole period is a mitigation of punishment in favour of rehabilitation, but it relies upon the sentencing judge determining the minimum period of custody appropriate to the circumstances of the offence. [68]
67. Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31.
68. Bugmy No 1, supra, at CLR 536.
While the joint judgment in Bugmy No 1 [69] was in dissent, the fact of dissent does not detract from the statement of principle on which the High Court, as a whole, agreed. Those statements of principle were recited with approval by this Court and bear repeating:

“[17]    It has been said that ‘(t)he intention of the legislature is that a minimum term is a benefit to the prisoner’; and so it is. The effect of fixing a minimum term is that the Parole Board may thereafter, in the exercise of its discretion, grant parole. But that does not mean that the sentencing judge, in fixing the minimum term, approaches the task on the footing that he or she is solely or primarily concerned with the prisoner’s prospects of rehabilitation. …
[18]    Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner. … [C]onsiderations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community ‘will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice’.
[19]    Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.” [70] (Citations omitted)
69. Bugmy No 1, supra (Mason CJ and McHugh J).
70. Bugmy No 1, supra, at 530-531 (Mason CJ and McHugh J, in dissent).

Thus, reciting the foregoing passage in the joint judgment in Bugmy No 1 with authority, this Court has said that in determining the non-parole period a sentencing judge should seek to reflect “such matters as the seriousness of the offence, the necessity for deterrence and the offender’s prospects of rehabilitation”. [71]
71. R v Yucel [2000] NSWCCA 532 at [14] (Carruthers AJ, with whom Meagher JA and Hidden J agreed).
As a consequence of the foregoing principles, in fixing the minimum term that an offender must serve, the sentencing judge has regard to all of the circumstances of the offence and, in so doing, provides for mitigation of the punishment (otherwise determined by the head sentence) in favour of the offender’s rehabilitation. Of necessity, factors that are relevant to the fixing of the head sentence will also be considered in fixing the non-parole period. So much is clear from the passage in the joint judgment in Bugmy No 1 recited above.
In fixing both the head sentence and the non-parole period, the sentencing judge was required to have regard to the expert reports before her, which disclosed that the respondent suffered mental conditions. As a consequence, as the learned sentencing judge noted, the respondent was not an appropriate vehicle (or as appropriate as an offender that was not suffering those conditions) for general deterrence. Further, even specific deterrence is informed by those mental conditions. The circumstance, disclosed to her Honour, that the respondent was being treated for those conditions for the first time, was relevant to that consideration. The expression of opinion by both Mr Ballardie and Ms Cullen were both predicated on the availability and implementation of available treatment.
The inconsistency between the aspect of insight to which her Honour referred as between the opinion of the author of the Sentencing Assessment Report, and the opinions of Ms Cullen and Mr Ballardie, may well have been attributable to the availability of treatment. The Sentencing Assessment Report was compiled on 19 March 2021 after interviews with the respondent. The Report does not state the dates upon which the interviews occurred. The Report of Ms Cullen was dated 4 May 2020 and the Reports of Mr Ballardie were compiled on 24 March 2021 and 14 August 2021. The last report occurred after appropriate treatment had commenced.
The availability of the treatment plan to which Mr Ballardie and, to a lesser extent, Ms Cullen refer is a matter of considerable importance in determining the minimum sentence, as well as the benefit to the community if the rehabilitation of the respondent can be fully implemented.
On a reading of the Remarks on Sentence as a whole, there can be little doubt that the learned sentencing judge was mindful of the factors that determined objective seriousness. Her Honour was also mindful of the need to impose a sentence that properly reflected general and specific deterrence, given the principles that apply to those factors when one is sentencing a person with a mental condition. Her Honour expressly considered each of the appropriate principles in determining the sentence to be imposed.
It is difficult, in a case such as this, to determine that an unidentifiable error of principle has occurred such as to affect the exercise of discretion by the sentencing judge, in circumstances where the sentencing judge has expressed correctly all of the applicable principles and, on the face of the Remarks on Sentence, applied them correctly. There can be little doubt that the sentencing judge took the view that a more severe sentence than the one her Honour imposed would have a significantly deleterious effect on the rehabilitation process that the respondent was undergoing. In that regard, her Honour, at least implicitly, applied the approach to which the foregoing comments of King CJ in Osenkowski relate.
Bearing in mind the seriousness of the offences — in particular, the fact that these offences involve the supply of over 12kg of prohibited drugs, and the violent and savage nature of the assault — I consider the aggregate sentence imposed, to be inadequate. Particularly, in regard to the assault, it is fortuitous that more severe injury was not occasioned. On the subjective circumstances of this particular offender, there is some doubt as to the manifest inadequacy of the sentence, but, in all the circumstances, I consider the sentence manifestly inadequate.
In so doing, I regard the assault offence as a quite separate offence, requiring condign punishment and, but for issues of totality, little concurrency. The sentence for the drug offences is light but, if they were the only offences, I would not have concluded that it was manifestly inadequate.
It then falls to the Court to determine whether it should exercise its residual discretion to intervene in the sentence imposed. Upon the question of the application of the residual discretion, the respondent relies on his Affidavit, tendered on appeal, upon which he was not cross-examined. In the Affidavit, the respondent makes clear that he was devastated when he heard the Crown was appealing, and that the appeal, which has been hanging over his head, has made life extremely difficult for him. There has been no unnecessary delay and any lapse of time is not the fault of the Crown.
The respondent further makes clear in his Affidavit that the effect of his sister’s support, and her emotional evidence at his sentencing proceedings, has caused him to understand better the pain through which he has put her and the rest of the family.
I have formed the same view that I have perceived her Honour formed. I consider that the respondent is at the crossroads of his life and has made significant and sincere attempts to rehabilitate.
In dealing with whether the Court should exercise its discretion to intervene and increase the sentence as a result of the foregoing findings, a number of factors are relevant. Even though no significant, unwarranted delay has been caused by the Crown, which advised the respondent of the potential appeal within two weeks of the sentence being imposed and filed the Notice of Appeal within one month of the sentence being imposed, there has been significant delay since the sentence was imposed.
As earlier stated, the sentence was imposed on 25 October 2021. The respondent has been incarcerated on these offences for over 2½ years and it has been almost 18 months since the respondent pleaded guilty in the Local Court. That period, awaiting the final outcome, is productive of stress as is noted above from the respondent’s Affidavit.
Given the respondent’s particular psychological vulnerabilities, the delay awaiting the final outcome is particularly concerning. Over and above the foregoing, the restrictions that have been imposed upon prisoners as a result of the pandemic have been particularly problematic for any prisoner who has an underlying mental condition. There is an inability to have physical contact; no contact with his young son, who is the motivating force behind his current attempts at rehabilitation; and the level of restrictions to movement and courses is an unfortunate aspect of the current regime in the prison system.
Increasing the respondent’s sentence, at this point in time, may have a deleterious effect on the respondent’s motivation to continue the process of rehabilitation and to lead a “simple, normal” life. Such a disruption is not in the interests of the community.
As earlier stated, by reference to the High Court judgment in CMB, supra, it is for the Crown, in appealing against a sentence under s 5D of the Criminal Appeal Act, to satisfy the Court to exercise its residual discretion to intervene. Citing with approval the judgment of Heydon JA in R v Hernando, supra, there are two hurdles to overcome.
The first is to locate an appealable error. Once appealable error has been found, the Crown is required “to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised”. [72]
72. CMB, supra, at CLR 359; [34] (French CJ and Gageler J).
This approach has recently been confirmed. In HT v The Queen, [73] the joint judgment of Nettle and Edelman JJ commented:

“As has been mentioned earlier in these reasons, the limited purpose of Crown appeals under s 5D(1) is relevant to the exercise of the residual discretion it provides. There may be circumstances where the guidance provided to sentencing judges will be limited, in which case it may be appropriate for the appeal to be dismissed in the exercise of the residual discretion. This was such a case. Because of the existence of non-publication orders no such guidance could be provided by a court exercising its powers under s 5D(1).”[74]
73. HT v The Queen (2019) 269 CLR 403; [2019] HCA 40.
74. Ibid, at [51] (Nettle and Edelman JJ).

Having determined that the sentence imposed is manifestly inadequate and outlined the relevant principles in fixing a non-parole period, any issues of principle involved in the Crown appeal have been resolved. In my view, the subjective circumstances of the respondent, and the exercise of discretion by her Honour, satisfy me that the Court should not, in the exercise of its residual discretion, intervene to increase the sentence.
I would propose that the Court dismiss the appeal.
DHANJI J: I agree with the orders proposed by Rothman J and, subject to what follows, which I do not regard as inconsistent with anything said by his Honour, with his Honour’s reasons. In relation to the drug supply offences, it is true that the respondent’s role was above that of a courier and thus above a level generally regarded as at the lowest end of an organised hierarchy. The difficulty with the Crown’s position on the appeal is that there was little evidence to establish just how far above that level the applicant sat. It cannot not be assumed, as Rothman J points out, that being at the mid-level of the organisation as a result of being above the lowest level, placed his offending within the mid-range of objective seriousness. It is true that, of the money found in the possession of the respondent, only one note came from the undercover operative, suggesting a level of drug supply activity beyond that exposed through the controlled operation. It was not, however apparent that the respondent’s “role” went beyond a capacity to source drugs from other suppliers when a person (such as the undercover operative) approached him and to enlist, on an ad hoc basis, the co-offenders for the purposes of supplying the drugs to the undercover operative. This is quite different from someone who might play a role in middle management of a large and well organised enterprise.
Despite the above, I agree that the aggregate sentence imposed, is manifestly inadequate. This is primarily on the basis that the aggregate sentence was required to encompass the criminality involved in the drug supply offences and the offence of assault occasioning actual bodily harm. The latter offence was, as the facts demonstrate, a brutal assault, committed in custody against another prisoner and thus committed in circumstances quite divorced from that in which the drug supply activity was committed. While the sentence was, to my mind, and having regard to all relevant factors, adequate to reflect the supply offences, it does not appear to reflect, or at least sufficiently reflect, the additional punishment required by the assault offence. I am, however, for the reasons given by Rothman J, not persuaded that this Court should exercise its discretion to intervene.

**********

Endnotes

Decision last updated: 10 June 2022

Medium Neutral Citation:	R v Boyd [2022] NSWCCA 120
Hearing dates:	11 May 2022
Date of orders:	10 June 2022
Decision date:	10 June 2022
Before:	Macfarlan JA at [1]; Rothman J at [2]; Dhanji J at [215]
Decision:	Appeal dismissed.
Catchwords:	CRIME – Crown appeal against sentence – manifest inadequacy – sentence was manifestly inadequate – insufficient accumulation for separate offence of assault over unrelated drug offences – no issue of principle requires intervention – “residual” discretion to intervene refused.
Legislation Cited:	Crimes Act 1900 (NSW), s 59 Crimes (Appeal and Review) Act 2001 (NSW), s 68A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A Criminal Appeal Act 1912 (NSW), s 5D Drugs (Misuse and Trafficking) Act 1985 (NSW), s 25
Cases Cited:	Abdul v R [2019] NSWCCA 18 Assam v R [2019] NSWCCA 12 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 CMB v Attorney-General (NSW) (2015) 258 CLR 346; [2015] HCA 9 Cullen v R [2014] NSWCCA 162 Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31 Devaney v R [2012] NSWCCA 285 Devaney v R [2012] NSWCCA 285 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194 Dunshea v R [2016] NSWCCA 244 Edmonds v R [2022] NSWCCA 103 Faraj v R [2022] NSWCCA 31 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Huang v R [2017] NSWCCA 312 Jackson v R [2019] NSWCCA 101 Kane v The Queen [2021] NSWCCA 250 Leach v The Queen (2008) 183 A Crim R 1; [2008] NSWCCA 73 Lloyd v R [2022] NSWCCA 18 Matu v R [2019] NSWCCA 23 McKinnon v R [2020] NSWCCA 106 Naberezhnov v R [2021] NSWCCA 142 Piao v R [2019] NSWCCA 154 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 R v Fyffe [2002] NSWSC 751 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R vHernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 R v Jeremiah [2016] NSWCCA 241 R v Kazzi [2008] NSWCCA 77 R v Osenkowski (1982) 5 A Crim R 394 R v Thomson [2016] NSWCCA 56 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 R v Yiu; R v Yau [2018] NSWCCA 155 R v Yucel [2000] NSWCCA 532 See v R [2020] NSWCCA 272 Shi v R [2017] NSWCCA 183 Tamer v R [2020] NSWCCA 333 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Regina (Appellant) Denis Christopher Boyd (Respondent)
Representation:	Counsel: E Balodis (Appellant) T Quilter (Respondent) Solicitors: Solicitor for Public Prosecutions (NSW) (Appellant) Jamieson Criminal Law (Respondent)
File Number(s):	2019/00374328; 2021/00023689
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 25 October 2021 Before: Harris DCJ File Number(s): 2019/00374328; 2021/00023689

Sequence	Offence	Maximum penalty	Indicative sentence
Indictment
7	Between 8 August 2019 and 13 August 2019, supplied large commercial quantity of prohibited drug – 787.2g methylamphetamine	Life imprisonment (SNPP 15yrs)	3yrs 10mo (NPP 2yrs 5mo)
12	Between 10 October 2019 and 27 November 2019, supplied large commercial quantity of prohibited drug – 4108.5g methylenedioxy-methylamphetamine (MDMA)	Life imprisonment (SNPP 15yrs)	5yrs (NPP 3yrs 2mo) (incl. Form 1 offence)
17	On 28 August 2019, supplied commercial quantity of prohibited drug – 873.2g amphetamine	20yrs (SNPP 10yrs)	3yrs (NPP 1yr 10mo)
18	On 17 December 2018, knowingly took part in the supply of large commercial quantity of prohibited drug – 999.9g methylamphetamine	Life imprisonment (SNPP 15yrs)	4yrs 6mo (NPP 2yrs 10mo)
19	Between 7 February 2019 and 3 June 2019, supplied large commercial quantity of prohibited drug – 5981.7g of ephedrine	Life imprisonment (SNPP 15yrs)	3yrs 10mo (NPP 2yrs 5mo)
2 (H77783522)	On 26 December 2020, committed assault occasioning actual bodily harm in company	7yrs (no SNPP)	3yrs 3mo
Form 1
16	On 27 November 2019, knowingly deal with proceeds of crime – $40,150	15yrs (no SNPP)	Taken into account with Seq 12