R v Pajou
[2025] NSWDC 238
•27 June 2025
District Court
New South Wales
Medium Neutral Citation: R v Pajou [2025] NSWDC 238 Hearing dates: 16 June 2025 Date of orders: 27 June 2025 Decision date: 27 June 2025 Jurisdiction: Criminal Before: Newlinds SC DCJ Decision: (1) Sentence the Offender to a term of imprisonment of seven (7) years and six (6) months, such sentence to be taken to have commenced on 6 September 2023 to expire on 5 March 2031.
(2) The Offender will be eligible for parole five years after that commencement date, being 5 September 2028.
Catchwords: CRIME – Drug offences – Manufacture prohibited drug – Large commercial quantity – Alleged non-exculpatory duress – Weight to be given to untested assertions by offender on contested matters of fact to third parties and by letter to the Court – Objective seriousness of offender coming to Australia for sole purpose of manufacturing large quantity of methamphetamine – Subjective case – Deprived childhood in Iran – Bugmy principles – Payment of gambling debt motivated offending – Opinion of psychologist as to clinical diagnosis of C-PTSD – Drug and gambling addictions
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A
Drug Misuse and Trafficking Act 1985 (NSW) s 24(2)
Evidence Act 1995 (NSW)
Cases Cited: Atkinson v R [2014] NSWCCA 262
Bugmy v The Queen (2013) 249 CLR 571
DPP (Cth) vDe La Rosa [2010] NSWCCA 194
Dungay v R [2020] NSWCCA 209
Jones and Anor v Booth and Anor [2019] NSWSC 1066
Kenny v R [2010] NSWCCA 6
Lam v R [2015] NSWCCA 143
Lee v R [2017] NSWCCA
Lewin v R [2017] NSWCCA 65
Munro v R [2006] NSWCCA 350
R (Cth) v Petroulias (No 36) [2008] NSWSC 626
R v Arnold [2004] NSWCCA 294
R v Elfar [2003] NSWCCA 358
R v Harrison [2001] NSWCCA 79
R v Henry (1999) 46 NSWLR 346
R v Palu [2002] NSWCCA 381
R v Qutami [2001] NSWCCA 353
R v Whitbread (1995) 78 A Crim R 452
Ryan v The Queen (2001) 206 CLR 267
Smith v R [2020] NSWCCA 181
Taitoko v R [2020] NSWCCA 43
Taysavang v R; Lee v R [2017] NSWCCA 146
WW v R [2012] NSWCCA 165
Category: Sentence Parties: Arash Binesh Pajou (Offender)
ODPP (Crown)Representation: Counsel:
Solicitors:
D Mulligan (Offender)
N Sawagid (Solicitor) (Crown)
Australian Criminal and Family Lawyers (Offender)
ODPP (Crown)
File Number(s): 2023/284299 Publication restriction: Order that the publication or disclosure of the content of redacted paragraphs [75]-[77] of these reasons is restricted to the parties only.
Extend the time prescribed by order (4) made by Newlinds SC DCJ on 16 June 2025 so that it remains in force until 27 June 2040.
JUDGMENT
Facts
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On 12 August 2023, the Offender, who was born in Iran and was a Canadian citizen but at the time was mainly resident in Iran, arrived in Australia. His sole purpose of coming to this country was to be involved in the manufacture of illicit drugs, in particular methamphetamine. He rented a motor vehicle and bought various items associated with drug manufacturing, including a large saucepan, large gas burner, strainers, spoons, a gas tank, an air compressor, and protective clothing.
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The Offender attended premises in Gladesville between 1 and 5 September 2023, and over that five-day period, was there for extended periods from morning until late at night. During that time, he was manufacturing methamphetamine.
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In the premises was a fully operational and elaborate clandestine illicit drug laboratory. There was little furniture or other items to indicate that the house was used as a residence.
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When Police arrived on 6 September 2023, there was a large number of containers of prohibited drugs, at various stages of refinement. Specifically, there was nearly 30kg of methamphetamine, 17.6kg of which had been refined to the point so as to be usable.
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The Offender was arrested and gave an interview to Police, where he said he did not rent or use the premises for living purposes but said he did use that address to receive mail and packages from online orders.
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Consistent with the Offender being at the premises regularly, his fingerprints were found at the premises, as was his DNA.
Arrest and charges
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The Offender was charged with “manufacture a prohibited drug – large commercial quantity” in breach of s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He was arrested on 6 September 2023 and has been bail refused since that date. It is common ground between the Crown and the Offender that he is entitled to have any sentence of imprisonment imposed backdated so as to commence on 6 September 2023.
Plea of guilty
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The Offender pleaded guilty to the offence on the first occasion it was before the Local Court at the Downing Centre, and it is common ground that he is entitled to the full 25% discount on what would otherwise be his sentence for that early plea.
Offence for sentence
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It is against that background that the Offender stands to be sentenced for the following offence, which carries a maximum term of life imprisonment and a standard non-parole period of 15 years:
Offence
Section and Act
Maximum Penalties
Standard Non-Parole Period
Manufacture a prohibited drug, large commercial quantity.
(Methylamphetamine 29.05 kilogram)
Section 24(2) Drug Misuse and Trafficking Act 1986 (NSW)
Imprisonment – Life – term of natural life (MAX) and
Fine – 5,000 Penalty Unit/s (MAX)
Imprisonment – 15 years Standard Non-parole Period
The objective seriousness of the offending
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The parties have agreed on a comprehensive set of Agreed Facts which I have summarised.
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The quantity of prohibited drug that was manufactured was a total of 29.05 kilograms of Methylamphetamine. The Methylamphetamine was in both crystallised form and in liquid form. This is over 58 times the large commercial quantity (LCQ) of 0.5kg for this drug. The police technical and forensic analyst concluded that the 'usable' Methylamphetamine found at the premises was 17.650kgs.
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The quantity of a drug manufactured is a material, but not determinative, consideration in assessing the objective seriousness of the offence that was committed. The quantity of drugs involved here is, to say the least, substantial.
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The Crown has submitted that I should conclude that the Agreed Facts support a finding that the Offender was:
“central to both the organisation of the manufacturer operation and to the actual manufacture of the prohibited drug himself”
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The Crown, obviously enough, emphasises the substantial quantities of drugs involved and submits that the objective seriousness of the offending falls within the mid-range of offences of this type.
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On behalf of the Offender, it is contended that the objective seriousness of the offending falls “well underneath the mid-range”. It is submitted that I should find there was a lack of sophistication involved in the operation, that it was not a substantial operation, and that the Offender was subordinate to others in making his decision to become involved.
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The Offender disputes that he was in any way involved in the organisation of the manufacturing operation other than at the lowest level, in that he bought the equipment from Bunnings, went to the premises, and so on. The Offender seeks a finding that he was acting under the direction and in part control of others.
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This brings into focus the central factual dispute between the parties, which is, was the Offender under some form of non-exculpatory duress when he made his decision to become involved in the manufacture of these drugs?
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The Offender gave no direct evidence before me, although there was tendered on his behalf a lengthy letter from him explaining his background generally but also why it is that he says he came to Australia to manufacture drugs. Similar evidence is given in letters from his mother and sister and is recorded as part of the history he gave to a psychologist, Mr Sam Borenstein. In essence, the Offender contends that, whilst living in Tehran, he became involved in illicit gambling, which he was unsuccessful at. This eventually resulted in him owing unidentified people approximately AU$200,000 in gambling debt. He had no means of paying that debt.
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He says that those people put extreme pressure on him to repay the money and implicitly threatened both him and his family with physical violence if he did not do so.
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They gave him the choice of travelling from Tehran to Australia to assist in the manufacture of drugs as a way of repaying those debts.
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The parties are at issue as to whether I should accept this evidence. It depends, in part, on some screenshots, or at least photographs, of some text messages said to be on the Offender's phone which is still in Tehran in the possession of his wife. Those text messages do look unusual, in that there is no date or time for any of the messages.
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Otherwise, the facts relied upon all come from the Offender himself.
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Whether or not I should act on unsworn evidence of the Offender, together with hearsay statements of the Offender given to other people is a matter for judgement. Superior courts have repeatedly emphasised that sentencing courts should exercise very considerable caution in relying upon statements made to third parties in circumstances where the offender does not give direct evidence about matters in dispute: see for example R v Qutami [2001] NSWCCA 353, per Smart AJ at [58]–[59]; R v Harrison [2001] NSWCCA 79 (”Harrison”) at [32]; and Lewin v R [2017] NSWCCA 65 at [26].
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The same can be said about letters written by offenders tendered to the Court. Again, they should be treated with considerable circumspection: R v Palu [2002] NSWCCA 381 at [40]–[41]; R v Elfar [2003] NSWCCA 358 at [25]; and Munro v R [2006] NSWCCA 350 at [17]–[19].
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Such untested self-serving assertions being accepted has been described as “a triumph of hope over experience": Harrison at [44].
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Sceptical as I am, I am prepared to find, on the balance of probabilities, in the Offender's favour that he was put under financial pressure by people he owed gambling debts to in Tehran and that as a consequence of that pressure he came to Australia knowing that he was going to be involved in the illicit manufacture of drugs. He did this in exchange for the debt to be extinguished.
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However, I am not satisfied that he was subject to threats of violence to himself or his family. It is conceded on behalf of the Offender that there were no express threats. The question is whether those threats were implicit from all the circumstances. I do not think that they were.
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Nonetheless, I am satisfied that the motivation of the Offender to do what he did was entirely driven by the pressure he was put under by people in Tehran to repay his gambling debts.
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In a sense, that means that the Offender was motivated by financial gain, which is a statutory aggravating factor. However, he was also under some duress in a very loose sense. This is a mitigating factor. In the circumstances, I think it ought properly be taken into account so as to understand the motivations of the Offender, thus reducing his moral culpability.
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It is true that the offending does appear to be moderately unsophisticated, and it does appear to have been quite easy for the Police to identify and arrest the Offender. Nonetheless, the offending involved a very large quantity of drugs, was planned in circumstances where the Offender had plenty of time to consider his options and was the only reason the Offender came to Australia. However, I do not accept the Crown’s submission that the Offender was central to the organisation of the drug manufacturing operation. He was central to doing the work, but others had put together the criminal scheme.
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Taking all those matters into account, I consider the Crown's assessment of the objective seriousness is to be preferred over the Offender’s.
Statutory mitigating factors
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It is common ground that the Offender is a person of good character and, as required under s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I take that into account in the way explained by McHugh J in Ryan v The Queen (2001) 206 CLR 267 at [29] and the Court of Appeal in Kenny v R [2010] NSWCCA 6 at [13].
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I have already considered the question of duress, as required by s 21A(3)(d) when assessing the moral culpability of the Offender for the purpose of assessing the objective seriousness of the offence.
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For reasons I have already explained, whilst I do not give particularly large amount of weight to this factor, I do think that it is a mitigating factor to be taken into account in the Offender’s favour.
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As to whether the Offender is unlikely to reoffend (s 21A(3)(g)), has shown remorse (s 21A(3)(i)), and/or has good prospects of rehabilitation (s 21A(3)(h)), all of these matters are interrelated.
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For reasons I will come to, the Offender's background is such that he is entitled to the full weight of what is known as the Bugmy principal. His deprived childhood has, in my judgement, led to him suffering from a clinically diagnosable psychiatric injury being Post-Traumatic Stress Disorder (“PTSD”). This in turn has contributed to the Offender’s use of illicit drugs throughout his life and, perhaps critically, his gambling addiction, which he did manage to keep under control for many years until the events which led to this offending.
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If one accepts the Offender's subjective belief at the time of the offending was that he had no other choice but to offend so as to pay off his debt, even if that subjective belief was perhaps not well-founded, the objective fact is the Offender made a decision to offend when there were other options open to him.
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The Sentencing Assessment Report assesses the Offender as having a low risk of reoffending. However, in light of the gambling addiction which is the Offender's own explanation for why he offended, I consider this assessment overly optimistic.
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In my judgement, the Offender has, albeit somewhat belatedly, shown remorse and contrition for his conduct. I am not entirely sure he has full insight as to why he did what he did, as he continues to maintain his duress explanation at the forefront of any discussion for why he offended.
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In summary, I am satisfied that the Offender has shown some remorse and contrition, and that his prospects of rehabilitation are reasonably good, and therefore his chances of reoffending are again moderately low. Ultimately, this will all depend on whether he can be successfully treated for his various addictions.
Statutory aggravating factors
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For reasons I have already explained, the offence was committed for financial gain. This is an aggravating factor under s 21A(2)(o).
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There is no evidence as to how much that gain would be, other than the Offender's own evidence that the debt promised to be extinguished in exchange for his conduct was about AU$200,000.
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Regardless of whether the Offender was to receive cash or kind, the fact is he did what he did in large part to repay a debt, which amounts to financial gain.
The Offender’s subjective case
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The Offender is of good character. This is his first offence. I have already outlined the circumstances that led him to offend.
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I turn now to the Offenders background.
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The Offender is 44 years old, was born in Tehran, Iran, and was exposed to very real and direct traumas in the Iran War.
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Upon fleeing to Canada as a refugee at the age of 11, the Offender completed his schooling. The Offender then studied Law at "Police Foundation" but then transferred into "Advertising and Design" with the International Academy of Design in Toronto. Ultimately, he became a mortgage broker.
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The Offender is currently married to his second wife to whom he has two young sons who reside in Iran. The Offender frequently travelled between Canada and Iran prior to his arrest.
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Prior to his offending, the Offender relapsed into drug use and a gambling addiction leading to him accruing the significant debt of AU$200,000.
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The Offender suffered a range of hardships during his formative years which invoke the well-known principles in Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”).
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The boundaries of when the principles in Bugmy are enlivened have not been "clearly or definitively delimited" and there is no magic in High Court's original use of the word "profound" when qualifying disadvantage. Furthermore, a causal nexus between a disadvantaged background and offending is a matter that goes to weight, rather than the applicability of the Bugmy principles: see Dungay v R [2020] NSWCCA 209 at [153]. I do not propose to go into the detail of the Offender’s deprived upbringing. Suffice to say, it well and truly qualifies as falling within the type of upbringing that engages the Bugmy principles.
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The Offender submits that there is a causal nexus between the Offender's deprived background and the present offending as the absence of secure attachments and a stable childhood appears to have had a contributing effect to the Offender's vulnerability to predatory gambling syndicates who then pressured the Offender into this offending.
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I consider that the relevant impact of the Offender's background is that it moderates the need for general deterrence, reduces the Offender's moral culpability to some extent, and promotes the need to help rehabilitate the Offender.
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The Offender has a history of drug addiction. He was first introduced to opium at the age of 20, following the murder of his best friend via a shooting. He then had significant periods of problematic usage which contributed to the breakdown of his first marriage.
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The Offender relies on the remarks of Simpson J in R v Henry (1999) 46 NSWLR 346 are apposite, where her Honour noted:
"In this Court, one sometimes sees cases in which drug taking stems from sexual assault or exploitation, sometimes committed when the person who turns to drugs, and who comes before the Court, is very young, and sometimes the precipitating events have occurred many years before. Drug addiction is not always the disease; it is, as often as not, a symptom of social disease.
Drug addicts do not come to their addiction from a social or environmental vacuum. This court should not close its eyes to the multifarious circumstances of disadvantage and deprivation that frequently precede and precipitate a descent into illegal drug use. I do not suggest for a moment that all drug users fall into this category. It is because some do and some do not that I believe rigid rules about the impact on sentencing of drug dependency on sentencing cannot be laid down."
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It is submitted by the Offender that the Court should place greater weight on the need to promote the Offender's rehabilitation given the circumstances that led this Offender to originally turn to drug abuse.
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Mr Borenstein, psychologist, has diagnosed the Offender with Complex Post Traumatic Stress Disorder.
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The Offender submits that the following mitigating limbs of DPP (Cth) vDe La Rosa [2010] NSWCCA 194 at [177] apply:
Due to the "material" nexus between the Offender's mental health condition and the offending, the Offender's moral culpability ought to be reduced.
The Offender is a less appropriate vehicle for general deterrence due to the interplay between the Offender's mental health, background of disadvantage, and consequential struggles with addiction.
The Offender will face a more onerous time in custody.
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Mr Borenstein's opinion is that the Offender was:
"navigating recurrent symptoms of traumatic stress in the wake of the threats he and his family were subjected to, and also activated symptoms of, Complex Post Traumatic Stress Disorder (“C-PTSD”), which has its origins in the first eleven years of his life in Iran."
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This impairment predisposed the Offender to both Substance Use and Gambling Disorders, which he ultimately developed in his early 20s. Mr Borenstein considers that visiting Iran caused a recurrence of symptoms associated with C-PTSD. It was in this context that the Offender relapsed into his prior Gambling Disorder and accrued a significant gambling debt, which motivated the offending.
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The Offender submits that the above circumstances led to the Offender's impaired ability to reason logically. This in turn materially contributed to the offending conduct in several ways, both direct and indirect in nature:
The Offender's C-PTSD contributed to the formation of a Gambling Disorder.
It is this relapse which led to the incurrence of the gambling debt which formed the basis of the Offender's decision to commit the offence.
It is the Offender's C-PTSD which impaired his judgement and decision making at a time where he was confronted by threats of reprisal (on himself and his family).
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The Crown accepts that the Offender’s upbringing and childhood engage the principles explained in cases like Bugmy.
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However, the Crown has emphasised that, in this sort of offending, being supplying drugs which must involve planning and organisation rather than impulsivity, it cannot sensibly be suggested that it was caused by dysfunctional tendencies subconsciously absorbed from experiences in early childhood: see Taysavang v R; Lee v R [2017] NSWCCA 146 at [40]-[43]; Atkinson v R [2014] NSWCCA 262 at [74].
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The Crown has also reminded me that there is a need to balance the Offender’s moral culpability, especially where diminished by reason of childhood deprivation, with the objective seriousness of the offence for which sentence is to be imposed. Important as the assessment of moral culpability is, it does not swamp the objective gravity of an offence: Smith v R [2020] NSWCCA 181 at [41]-[43].
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The Crown also takes the point that Mr Borenstein is not a psychiatrist and therefore cannot give a medical diagnosis as expert evidence.
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It seems to me there are a number of answers to this. The first is that the rules of evidence do not apply and therefore the fact that Mr Borenstein is not perhaps qualified to give opinion evidence strictly speaking within the terms of the Evidence Act 1995 (NSW) is beside the point. There is of course then a question of how much weight should be given to that opinion. The second answer is that I think the various cases that I have been referred to, when read together, are authority for the proposition that this question of weight is a matter for me and will turn on the facts of any particular case.
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The Crown, relying on the well-known statement of Johnson J in R (Cth) v Petroulias (No 36) [2008] NSWSC 626 at [164], cited with approval by the Court of Appeal in WW v R [2012] NSWCCA 165 (“WW”) at [58] and Lam v R [2015] NSWCCA 143, submits that Mr Borenstein has “crossed the line” so that his opinion is beyond his field of expertise and ought be given no weight.
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However, it seems to me that the various judgments relied upon do not stand for the stark proposition contended for by the Crown. For example, blanket rejection of a psychologist’s report and opinions has been criticised in a number of decisions where it was said that the report was capable of bearing upon the issues: R v Whitbread (1995) 78 A Crim R 452 at 460 to 461; R v Arnold [2004] NSWCCA 294 at [63] and [64]. These cases were referred to with apparent approval by Johnson J in Jones and Anor v Booth and Anor [2019] NSWSC 1066 and his Honour's observations at [65] and [67] strongly suggest that opinions expressed by psychologists, that perhaps stray beyond the strict bounds of their expertise, should not be dealt with by a blanket approach in a factual vacuum either in favour of or against the use of a psychologist report in a particular case. As his Honour said, what will be of assistance to the court and appropriate to receive will depend upon the particular circumstances of the case. In Taitoko v R [2020] NSWCCA 43, the Court of Appeal, whilst endorsing what was said in WW, said, at 114:
“Where, as in the present case, a psychologist’s report is tendered without objection, then it formed part of the evidence before the sentencing judge to be given such weight as it deserved”
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In my judgement, the preponderance of authority is that the question of what should be done on sentence with opinion evidence of a person who does not necessarily hold the qualifications to express that opinion is a matter of weight to be judged in the particular circumstances of any case. It is, of course, relevant that the context is a sentencing hearing where the rules of evidence do not apply in any event. Mr Borenstein is extremely experienced in relation to the particular diagnosis, and, in my opinion, it ought to be given weight, perhaps not the same weight as if the opinion was expressed by a psychiatrist, but nonetheless, I am prepared to proceed upon the basis that the Offender, as a consequence of his childhood trauma, does suffer from C-PTSD.
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In my opinion, the Offender is entitled to the full benefit of the Bugmy-type considerations. There is a causal nexus between his childhood deprivation and the offending, albeit there are a number of steps in the chain of causation. The first is the childhood deprivation itself, the second is the C-PTSD, the third is the drug addiction that was caused by those events, the fourth is the gambling addiction, and the fifth is the financial pressure that was exerted by the gambling associates.
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The Offender has expressed his remorse and contrition through statements he has made to his mother and sister, the history he gave to Mr Borenstein, and a letter he wrote to me for the purpose of the sentencing hearing.
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The Offender chose not to give evidence on oath and to expose himself to cross-examination. The Crown has submitted that I should be circumspect in those circumstances in accepting the Offender’s asserted contrition and remorse because, at almost every step of the way, it is couched in the context of his explanation by root of the duress topic, as to why he did what he did.
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In all the circumstances, I do accept that the Offender has shown remorse and contrition and the topic which I will touch upon shortly lends some support to that conclusion.
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Whether he has shown complete insight into why he made the choice he did is something that I doubt, but I do feel that, over time, his own assessment as to his conduct is becoming clearer and that, ultimately, he does now accept, albeit it has taken some time to get there, that he made a conscious decision to involve himself in serious criminal conduct for which he must take ultimate responsibility.
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Consideration
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The offences are very serious. The fact that the offence carries a maximum term of life imprisonment, with a standard non-parole period of 15 years, makes it clear that society, through Parliament, treats offending of this kind as one of the most serious examples of criminality.
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The objective conduct of the Offender is, for reasons I have explained, in my opinion, somewhere around the mid-range of seriousness for this type of offending.
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As to the Offender's subjective case, he is a man of otherwise good character and, whilst the explanation based on “duress" is not satisfactory or an excuse, it is a reason for why he offended and, so long as he can control his various addictions in the future, which I am satisfied he has a determination to do, he is unlikely to reoffend.
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I have considered a number of cases put forward by both the Offender and the Crown said to be of assistance. Of course, each case turns on its own special facts and no one case will be determinative of the outcome of the others.
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I have given considerable weight to the childhood deprivation suffered by the Offender and its interrelationship with the explanation for the offending. There is a causal nexus between that childhood deprivation and the offending.
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Nonetheless, the stark fact is the Offender made a conscious choice to come to Australia for the sole purpose of committing a very serious crime. He did so in a considered and planned way and the offending took place over a period of five consecutive days.
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Taking all the matters that I have referred to into account, I have determined that an appropriate starting point for sentence is 10 years imprisonment.
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From that starting point, is to be deducted 25% as a consequence of the early plea of guilty, which reduces the head term to 7 years and 6 months.
Period on parole – Special circumstances
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This is the first time the Offender has been in custody. Moreover, he has suffered significant ill-health whilst in custody, in that he has had a serious cardiovascular episode which has involved bypass surgery which appears to have been successful, although he has been admitted to hospital on a number of occasions since with chest pain.
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On my finding that he has PTSD, combined with his physical ailments and other matters, I do think that his time in custody will be more onerous than perhaps it would be if he was not in the state of health he is in.
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Taking those matters into account, I am satisfied that there are special circumstances which justify modestly reducing the time in custody and increasing the time on parole modestly from the standard.
Orders
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Taking all those matters into account, including a 25% discount for the plea of guilty, I:
Sentence the Offender to a term of imprisonment of seven (7) years and six (6) months, such sentence to be taken to have commenced on 6 September 2023 to expire on 5 March 2031.
The Offender will be eligible for parole five years after that commencement date, being 5 September 2028.
Order that the publication or disclosure of the content of redacted paragraphs [75]-[77] of these reasons is restricted to the parties only.
Extend the time prescribed by order (4) made by Newlinds SC DCJ on 16 June 2025 so that it remains in force until 27 June 2040.
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Decision last updated: 27 June 2025
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