R v SH

[2025] NSWDC 410

District Court

New South Wales

Medium Neutral Citation:

R v SH [2025] NSWDC 410

Hearing dates:

1 October 2025

Date of orders:

16 October 2025

Decision date:

16 October 2025

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Custodial order with Recognizance Release Order to be effected immediately. For orders see [97]

Catchwords:

SENTENCE – Young offender – Attempt to possess a commercial quantity of an unlawfully imported border controlled drug

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code 1995 (Cth)

Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:

BP v R [2010] NSWCCA 159

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

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Elchiekh v R [2016] NSWCCA 225

Hoskins v R [2021] NSWCCA 169

KT v R (2008) 182 A Crim R 571

Lau v R [2011] VSCA 324

MF v R [2024] NSWCCA 42

R v Kovaleff [2023] NSWSC 302

R v Nguyen; R v Pham [2010] NSWCCA 238
Totaan v R [2022] NSWCCA 75

R v Todd [1982] 2 NSWLR 517

Robertson v R [2024] NSWCCA 22

Sarhene v R [2022] NSWCCA 79

TH v R [2025] NSWCCA 121

TM v R [2023] NSWCCA 185

YZ v R [2025] NSWCCA 165

Category:

Sentence

Parties:

SH (The offender)
Commonwealth Director of Public Prosecutions
(The Crown)

Representation:

Counsel:
Ms C Feiner (The offender)
Ms P McEniery (The Crown)

Solicitors:
Children’s Legal Service, Legal Aid NSW (The offender)
Commonwealth Director of Public Prosecutions (The Crown)

File Number(s):

2023/00145548

Publication restriction:

Pursuant to s15A of the Children (Criminal Proceedings) Act 1987 it is an offence to publish or broadcast the name of the offender

REMARKS ON SENTENCE

1. The offender SH was born in March 2006. He is to be sentenced for an offence of attempt to possess a commercial quantity of an unlawfully imported border controlled drug that occurred on 5 and 6 May 2023 when he was 17 years of age. This is an offence pursuant to ss11.1 and 307.5 of the Criminal Code 1995 (Cth) (“the Code”). The maximum penalty prescribed for this offence is imprisonment for life and/or 7,500 penalty units ($2,620,500).

2. The offender was arrested on 6 May 2023 and spent 14 days in custody. He has thereafter been on strict bail conditions which have been varied on several occasions but have consistently included him living at home, being subject to a night curfew, reporting regularly to police, being abstinent from alcohol and drugs, not approaching any international port of departure or applying for a passport, together with a guarantee by way of surety.

The sentence hearing

3. The sentence hearing took place on 1 October 2025. The Crown Sentence Bundle became Exhibit A. It included a lengthy statement of agreed facts which may be summarised as follows. In January 2023 anti-smuggling authorities in China detected a consignment of methamphetamine concealed inside a cast iron pulley. The methamphetamine was seized on 3 February 2023 and substituted on 6 February 2023. It was identified as having a purity of 80.3% with a calculated pure weight of 187.1 kilograms, which is more than a commercial quantity (i.e. 750 grams). The pulley arrived in Sydney on 30 April 2023 and was subject to a controlled operation which included authorised surveillance by way of a covert listening device installed by the AFP.

4. At 9:43 a.m. on 5 May 2023, the pulley was delivered to industrial premises at Wetherill Park. The offender and another male person were seated in a black Mazda motor vehicle parked next to the premises. At about 10:20 a.m. a co-accused, Mounire Mokdassi, arrived at the premises driving a forklift. He had a brief conversation with the driver of the delivery truck, gestured towards the vehicle in which the offender was seated, unlocked and opened the door to the premises at which point the offender exited the vehicle and entered the premises with Mokdassi.

5. The delivery driver asked who would sign the consignment notice and Mokdassi refused, following which the offender signed a “Proof of Delivery Form”.

6. Between 10:43 a.m. and 1:55 p.m. the offender was involved in a number of conversations with Mokdassi and another person which were captured by covert listening devices. Those conversations concerned attempts to open the pulley.

7. At 2:14 p.m., co-accused Cucek and Martin arrived at the premises driving a truck they had hired. The offender was present and at 2:47 p.m., Mokdassi used a forklift to place the pulley into the rear of the truck. The co-accused then drove the truck around the area surrounding Wetherill Park for approximately 44 minutes in an exercise of counter-surveillance in order to determine whether there was any police interest in the pulley.

8. At 3:40 p.m., the offender returned to the premises and was observed to use a key to open the door. The truck driven by the co-accused arrived shortly thereafter and Mokdassi used a forklift to move the pulley back into the premises whilst the offender was inside. The offender and other co-accused were observed to leave the unit at 4:00 p.m. Thereafter between 4:42 p.m. and 9:00 p.m. communications were exchanged between the co-accused concerning the opening of the pulley and arrangements for securing the consignment overnight. The offender was not involved in those communications.

9. On 6 May 2023, the offender arrived at the premises at 7:25 a.m. when he had a conversation with Mokdassi concerning his payment which was captured by the covert listening device. At 9:11 a.m. the offender was observed bringing two fuel cans into the premises and moving a petrol generator into the premises. Throughout the morning the offender and co-accused were captured on CCTV frequently exiting and entering the premises. On one occasion the offender was observed holding earmuffs in his hand and on another occasion with earmuffs around his neck. Throughout the morning the covert listening device continued to capture the sound of intermittent grinding whilst the co-accused attempted to open the pulley, however the Crown cannot prove to the requisite standard that the offender himself engaged in the act of grinding or attempting to cut the pulley.

10. During the morning covert recordings were made of conversations between the co-accused regarding difficulties in accessing the contents of the pulley. Between 10:04 a.m. and 10:19 a.m., the offender was seated in the rental truck whilst the co-accused remained inside the premises continuing to discuss the difficulties in opening the pulley.

11. At 10:21 a.m. the co-accused were arrested inside the premises and the offender was arrested inside the rental truck which was parked out the front of the premises. Mokdassi was observed to be driving away from the premises before being followed and arrested at an intersection in Smithfield. When the AFP examined the pulley they observed cut marks on its exterior, along with holes drilled into it which facilitated internal access.

12. Exhibit A included NSW Police Force Court History Convictions which revealed that the offender had no previous relevant convictions relating to prohibited drugs.

13. Exhibit A also included a Confidential Background Report prepared by Ms J Bishop, Caseworker and Ms M Preston, Assistant Manager from Youth Justice NSW dated 29 August 2025. The report set out the offender’s family and living circumstances. He is the youngest of 12 children and his parents had separated when he was approximately 9 years old. His father had problematic alcohol use and gambling behaviours and subjected the offender to frequent physical abuse framed as discipline, including the use of extension cords. Following his parents separation, the offender lived with his mother and siblings in circumstances of financial stress. Following his father’s departure from the home, the offender pushed boundaries and started to “run amok”. He had a close bond with his mother but once he commenced high school he gravitated towards a new peer group. He was an average student academically but was subject to school suspensions for fighting, property damage, harassing other students, verbal abuse towards teachers and aggressive behaviour. A report in August 2020 noted a school attendance of 51% with repeated class truancy and a pattern of consequence avoidance.

14. The authors noted that he left school in year 12 after being suspended for repeated truancy. Since his arrest the offender had obtained employment on a production line as a night shift employee. His direct supervisor described him as “a very capable employee who is willing to complete any task given.” It was noted that he had a strong work ethic and had demonstrated “growing maturity”, evidenced by his increased focus and drive while at work. He also assisted his partner’s family doing concreting work and had future plans to engage in construction work. His employment was assessed as a protective factor in addressing his offending behaviour as it provided him with structure and routine to his week, together with interactions with pro-social colleagues. The offender stated that he had made significant changes to his peer associations, avoiding anti-social type behaviours.

15. The authors noted that the offender grew up in a low-socio economic area of Sydney which contributed to his gravitation toward other disenfranchised youth and ultimately poor choices around criminal behaviour. By the age of 16, he expressed that he “really wanted money and would do anything for it”.

16. The offender had advised the authors that he had no previous association with the co-accused and reported they had only met on the day of the offence, which the authors challenged. The offender denied any links to community gangs and denied being under the influence of any substance prior to, or during his involvement in the offence. He was not motivated by any desire to procure drugs for personal use, and asserted that he had no knowledge that the pulley contained the large volume of methamphetamine until he was arrested.

17. The offender reported poly-substance abuse from the age of 14. He first used alcohol and cannabis which escalated to daily use of cannabis and binge drinking on weekends. The escalation occurred when he was 15 after a close friend was murdered and he would use it to help with the grief, and within 1 to 2 years he was using cocaine on weekends.

18. The authors referred to the report of Mr D Sheptooha, psychologist dated 10 July 2025, which revealed three psychological issues for which he could benefit from treatment:-

1. Self-reported symptoms of Major Depressive Disorder coinciding with his best friend’s murder.

2. Trauma symptoms related to childhood abuse commencing aged 14 including disclosure of experiencing distressing memories and traumatic dreams which force him awake; hypervigilance; avoidance behaviours;, although denied dissociative symptoms. These symptoms were consistent with Post Traumatic Stress Disorder (“PTSD”).

3. Presentation of persistent auditory hallucinations and paranoid delusions lasting approximately 4 years, combined with significant functional decline and concurrent mood symptoms, is most consistent with schizoaffective disorder.

19. The offender had declined a community referral for mental health support during the adjournment period, stating that an older brother suffered worsening mental health symptoms after being placed on pharmacological medication. He did, however express willingness to consider counselling if mandated.

20. The offender denied any involvement in the pre-planning of this offence. His sole motivation was financial gain, and he expected his payment for his involvement would be substantial.

21. The offender accepted responsibility for his actions and did not attempt to redistribute blame or apportion any responsibility to the co-accused for his role in the matter. He had been offered a role in the offence as the “lookout” for an undisclosed amount of money that he indicated would have been life changing for him. He accepted the role without questioning and never reconsidered his involvement in the offending conduct. He described his emotional state at the time of the offending as “calm, steady” and did not consider the risks involved describing himself as “young and dumb”.

22. The offender had started to consider the impact on the community from this type of offending conduct given the scale of methamphetamine involved and its consequences. He accepted any consequences to be imposed by the Court for his involvement. He had also started to contemplate the impact of his offending behaviour on his unborn child and the need to be a positive role model for his family. The authors opined that should he fully commit to intervention, he has the capacity to make and maintain pro-social change.

The offender’s evidence

23. The offender relied on the report of Mr D Sheptooha dated 10 July 2025. He assessed the offender on 26 June 2025 for a period of 2 hours, after which he completed psychometric testing. The author took a family history consistent with that recorded by Youth Justice representatives. As a young child he had been exposed to alcohol abuse and subjected to physical abuse by an abusive and authoritarian father. His school life had been complicated by disruptive behaviour and truancy, and he was expelled from school in year 12 due to non-attendance.

24. The author took a history of drug and alcohol abuse consistent with what is set out above.

25. The author noted the onset of an affective disturbance at age 15 coinciding with his best friend’s murder. He reported symptoms consistent with Major Depressive Disorder. He also reported trauma symptoms related to childhood abuse commencing at age 14, disclosing experiencing distressing memories and traumatic dreams, hypervigilance and avoidance behaviours consistent with PTSD.

26. The offender also disclosed persistent auditory hallucinations which commenced at age 15 which involved a voice that he heard providing commentary on his behaviour and with which he reportedly engages in conversation. He also reported persistent paranoid delusions from age 15/16 initially precipitated by cannabis use but which had intensified since his arrest. He had never been medicated or engaged in psychological treatment and expressed ambivalence towards such treatment but a willingness to consider counselling if mandated. Mr Sheptooha opined that his presentation with persistent auditory hallucinations and paranoid delusions lasting approximately 4 years was consistent with schizoaffective disorder.

27. Unfortunately, the offender’s psychometric testing was rendered invalid by his careless approach to it.

28. In relation to the offending, the offender gave an account that was broadly consistent with the Agreed Statement of Facts. His offending was motivated by financial gain, and he just wanted money quickly. The offender advised that he had been preoccupied with thoughts of procuring money to provide basic necessities for his mother and siblings. He expressed regret for his offending, however this appeared to be related to the consequent upset his offending caused his mother.

29. Mr Sheptooha opined that the offender’s mental condition directly related to the commission of the offence. At the time he was ostensibly experiencing significant social disadvantage coupled with untreated psychological distress. He went on to opine, “his reasoning and judgment were significantly comprised by virtue of his untreated mental illness, and cognitive distortions related to his psychotic symptoms”.

30. Mr Sheptooha identified some protective factors, namely the offender had expressed regret for his offending, identified pro-social goals including fatherhood and achieving financial stability, was currently abstinent and had maintained employment. One possible prognostic barrier was his inability to perceive the value in therapeutic assistance.

31. Finally the author opined that the offender’s presenting symptoms, “particularly paranoid ideation, auditory hallucinations and traumagenic distress”, would be exacerbated by the unpredictable and harsh environment of an adult correctional centre. He described the offender as presenting as “psychologically fragile and vulnerable to the propagation of anti-social influences noting his criminal affiliations”.

The Crown submissions

32. The Crown relied on a detailed written outline of submissions and from the outset submitted the only appropriate sentence is a term of full-time imprisonment.

33. The Crown outlined relevant sentencing principles for Commonwealth offences committed as a child, which are not controversial. Section 20C(1) of the Crimes Act 1914 (Cth) (“the Crimes Act”), provides for a child or young person who is charged with or convicted of an offence against the law of the Commonwealth may, but not necessarily must, be punished or otherwise dealt with as if the offence were an offence against the law of the State or Territory. This is a facilitative provision and does not exclude sentencing options available under Commonwealth law. It does enable the principles under the Children (Criminal Proceedings) Act 1987 (NSW) (“CCP Act”) to be picked up and applied as “surrogate” federal laws. However as a federal offender, the Court sentencing a young person for a Commonwealth offence is bound by s16A of the Crimes Act as this offender is to be sentenced for a serious children’s criminal offence the sentencing options in Part 3, Division 4 of the CCP Act are not available but the guiding principles pursuant to s6 of the CCP Act must be taken into account.

34. The Crown set out well established principles that apply to sentencing for Commonwealth drug importation and related offences as held in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72] per Johnson J.

35. The Crown submitted the maximum penalty of life imprisonment indicates that the offending is objectively very serious and constituted a significant legislative intent to restrain the importation of prohibited drugs.

36. The Crown addressed the nature and circumstances of the offence by reference to the Agreed Statement of Facts. The role of the offender is critical to the exercise of the sentencing discretion and the Crown conceded that the offender’s position within the enterprise was towards the lower end of the hierarchy. It is clear that the co-accused, Mokdassi was directing the offender, and the offender was following his orders. The Crown submitted the offender was a willing and valuable participant in the organisation and was present while the co-accused attempted to retrieve the contents they believed to be hidden in the pulley. The Crown submitted the following factors are of particular relevance:-

• On 5 May 2023 the offender was already outside the storage unit in a car with another male when the pulley was delivered, which indicates planning and co-ordination with others.

• With the co-accused Mokdassi he interacted with the delivery driver and signed the "Proof of Delivery Form" using a false name, which was an attempt by the offender to conceal his involvement in the offending.

• He discussed the contents of the pulley and how to access it with both Mokdassi and another male in three conversations.

• The offender was trusted with the key to the premises where the pulley was being stored, as he later opened up the storage unit in the afternoon of 5 May 2023 for the co-accused Cucek and Martin.

• He spent several hours at the premises on 5 and 6 May 2023 until arrested by police on 6 May 2023. The Crown submits his continued presence at the storage unit was in order to assist others whilst they attempted to gain access to the substance believed to be concealed within the pulley.

• He was an interested and willing participant asking numerous times how they could open it, opining where the "stuff" might be and how they would get it out.

• On 6 May 2023 the offender was involved in attempts to start a petrol generator, including bringing fuel cans inside the unit and moving the petrol generator from the outside of the unit to the inside.

37. The Crown submitted that the fact the offender performed only a limited role does not necessarily entitle him to leniency. However the offender is to be sentenced on the basis that he was reckless as to the nature of the substance, which the Crown submitted does not mitigate the seriousness of the offending, relying on Lau v R [2011] VSCA 324 at [25]-[26].

38. The Crown submitted that the weight of the drug here was approximately 250 times the commercial quantity threshold. Whilst there was no evidence that the offender knew the exact quantity of the drug, it could be inferred that he knew it was a substantial amount given the size of the pulley.

39. The Crown submitted it was clear that the offender was motivated by financial gain, and the principles of general deterrence and denunciation are significant considerations in sentencing for offences involving unlawfully imported border controlled drugs.

40. The Crown conceded that the offender entered a plea of guilty at the earliest available opportunity and acknowledged the utilitarian value of the plea of guilty.

41. Whilst acknowledging that the offender was 17 years of age at the time of the offending he is now 19 years of age, and that his youth can be taken into account in determining the appropriate sentence, the Crown submitted this particular offending clearly involved planning and preparation and cannot be described as spontaneous or due to an absence of impulse control, nor did it have “all hallmarks of youth”. The Crown submitted the weight to be given to the offender’s youth should not outweigh the need for retribution and deterrence.

42. The Crown submitted that general deterrence remains a significant sentencing consideration, accepting that it is less relevant than it would be if the Court were sentencing an adult offender.

43. The Crown accepted the offender came from a background of childhood deprivation and disadvantage as outlined in the background report and the report of Mr Sheptooha.

44. The Crown also accepted that the offender’s mental condition may be relevant in accordance with DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].

45. In relation to Mr Sheptooha’s report, the Crown submitted that limited weight should be given to it because the psychometric testing was rendered invalid and there were inconsistencies in the self-reporting of the offender to the psychologist and authors of the background report. Further, self-reported auditory hallucinations should be approached with caution absent direct evidence from the offender.

46. The Crown submitted the Court should take a cautious approach when assessing the offender’s prospects of rehabilitation and his risk of recidivism given his expressed reluctance to engage in mental health supports and treatment and that his insight into the offending is limited. It was however clear that the impact to his family is to be taken into account on sentence.

47. With respect to the delay in sentencing, the Crown noted that he was arrested on 6 May 2023 and not committed to the District Court until 9 May 2025. The delay was largely attributable to the time involved in obtaining foreign evidence from China regarding the methamphetamine extracted from the pulley. The Crown referred to Elchiekh v R [2016] NSWCCA 225 for the relevant principles concerning delay on sentence – see [56] per Price J.

48. The Crown provided a schedule of comparative cases to provide guidance as to the identification and application of relevant sentencing principles and also to show a range of available sentences. None of the cases were relied on as being factually similar to the offending here.

49. In her oral submissions the Crown identified the divergence between the outcomes sought by the Crown (i.e. full-time custodial sentence) and the offender (immediate release on a Recognizance Release Order). The Crown submitted that the Court would have regard to the objective gravity of the offending here and his moral culpability which warranted an immediate custodial sentence having regard to the maximum penalty prescribed of life imprisonment.

50. The Crown acknowledged that the offence of attempt to possess border controlled drugs concerned a broad range of offending conduct. However here, that conduct had endured over 2 days and was done for significant financial gain notwithstanding that the offender’s role was at the lower end of the hierarchy. There had been planning and pre-meditation of the offence given that an offer was made to the offender, which he accepted, to be involved in return for money. He had been placed in a position of trust, given the key to the premises and therefore was in a position of control albeit briefly. The Crown submitted he was aware of the nature and scale of the operation but not the precise weight of border controlled drugs, although he must have been aware that it was a substantial amount.

51. Whilst a non-custodial sentence was not outside the range of sentences available, by reference to the objective seriousness of the offending, the Crown submitted a custodial sentence should be imposed. The Crown did not object to that sentence being served in juvenile custody.

52. The Crown then rehearsed a number of her written submissions. She conceded that childhood disadvantage does not have to be profound in accordance with Hoskins v R [2021] NSWCCA 169 per Brereton JA at [57].

53. Similarly the Crown accepted that the offender’s mental health at the time contributed to his offending in a material way. However the Crown submitted there was nothing to suggest that the offender did not know what he was doing at the relevant time and there was nothing to suggest he was suffering either psychosis or delusions at the time.

54. The Crown rehearsed its submissions regarding delay and the utilitarian value of his early plea of guilty. The Crown submitted that the assessment of objective seriousness of the offending was important in determining whether a non-custodial order is available.

The offender’s submissions

55. Counsel for the offender also relied on a thorough and detailed written outline of submissions. In assessing the nature and circumstances of the offending, counsel referred to the following matters:-

1. The young person’s involvement was for a relative short period.

2. He signed for delivery of the pulley, in circumstances where the adult co-accused Mokdassi (who had originally spoken with the delivery driver and had moved the consignment using a forklift) declined to sign.

3. He assisted in removing the plastic from the pulley, as instructed by Mokdassi.

4. He used a key to open a door to the storage unit after the pulley had been removed for a period.

5. He brought two fuel cans into the unit and moved a petrol generator from outside the unit, inside.

6. He was wearing earmuffs at one point. Although the Crown accepts that it could not be demonstrated to the requisite standard that he engaged in the act of grinding or attempting to cut the pulley.

7. He sat in the rental truck at one point.

56. Counsel submitted that the offender had limited knowledge of the particulars of the enterprise beyond his limited role in it. He was given instructions by Mokdassi, was not part of the electronic or verbal communications between other co-accused in relation to plans for removal of the substance from the pulley. He clearly had a less extensive role than the adult co-accused.

57. Counsel conceded that the offender was motivated by financial gain and had been frank in that regard. He had expected payment for his involvement to be substantial, although it was noted that in the context of his disadvantaged circumstances at the time of the offending, his assessment of what would amount to a substantial payment may be a relative concept.

58. Counsel submitted that the offender’s involvement in the offence came about in circumstances where he was both financially and socially vulnerable. He was a child amongst adult offenders with a limited role, and he was low in the hierarchy of offenders.

59. Counsel made the following submissions relating to the relevant factors in s16A of the Crimes Act:-

s16A(2)(f) – The degree to which the offender has shown contrition for the offence

60. There was an element of contrition evident in the offender’s plea. He had expressed regret to Mr Sheptooha about his offending with a focus on the consequent distress to his mother. The author of the background report noted that he accepted responsibility for his involvement in the offence and did not attempt to blame others. He had also started to consider the impact on the community of his offending and was able to identify some of the consequences of methamphetamine availability within the community.

s16A(2)(g) – Guilty plea

61. His plea of guilty was entered at the first reasonable opportunity and a discount in the order of 25% should be afforded.

s16A(2)(m) – Character, antecedents, age, means and physical or mental condition of the offender.

62. Counsel relied on the offender’s significant subjective features. The offender was aged 17 years and 1 month at the time of offending and is now 19 years of age. He was 1 of 12 siblings of Tongan/Australian background and was born and raised in Mt Druitt. His parents had separated when he was 9 years of age, and his father had engaged in problematic drinking and gambling behaviour. He was subjected to excessive corporal punishment and exposed to alcohol and gambling abuse. Following his father’s departure the family lived under financial pressure, and he often went hungry.

63. His schooling was disrupted by behavioural issues and truancy. He finished school in year 12 having been expelled as a result of non-attendance.

64. Counsel relied on the following opinions of Mr Sheptooha:-

“SH appears to have endured an adverse childhood marked by exposure to emotional neglect, physical abuse, corporal punishment, parental substance misuse, impacting his psychosocial development during formative years and his coping and relational skills in adult life.”

“SH’s childhood is undoubtedly a factor in understanding the situation he is in at present. Despite holding a normative view of childhood, he experienced the opposite: an upbringing complicated by exposure to severe physical abuse, parental substance misuse, family breakdown, and significant social disadvantage. Not only was SH deprived of secure attachment figures, but such adversity poorly equipped him to develop emotional regulation, adaptive coping mechanisms, and appropriate interpersonal skills.”

65. It was submitted that the offender had suffered a background of childhood deprivation and disadvantage so as to engage the sentencing principles referred to in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

66. The offender’s submissions rehearsed all of the matters set out in the background report and that of Mr Sheptooha, as set out above. It also rehearsed his drug and alcohol use from an early age and the mental health diagnosis made by Mr Sheptooha. It was not in dispute that the offender’s mental health conditions contributed to his offending in a material way. The offender submitted that these issues operate to reduce his moral culpability and moderate the need for specific and general deterrence in accordance with the principles set out in DPP (Cth) v De La Rosa.

s16A(2)(m) – Prospects of rehabilitation

67. Counsel noted the protective factors identified by Mr Sheptooha including the offender’s youth, his expressed regret for his offending, his identified prosocial goals, including fatherhood and achieving financial stability, his abstinence from drugs and alcohol, his employment and his prosocial relationship with his partner. Counsel rehearsed all of the relevant factors set out in the background report and that of Mr Sheptooha to submit that his prospects of rehabilitation are good, particularly if he is permitted to continue with his employment and in his positive relationship. His prospects would be enhanced by access to mental health treatment and support.

s16A(2)(p) – Probable effect of sentence on family and dependents

68. Counsel submitted that it could be inferred that if the offender was incarcerated this would have an adverse effect on the baby’s ability to bond with his father and have an adverse effect on the offender’s ability to support his partner following the birth of the child. Such hardship did not need to be determined to be exceptional in order to be taken into account on sentence, relying on Totaan v R [2022] NSWCCA 75 at [81]-[83].

69. Counsel relied on the well-established principles relating to sentencing youthful offenders, relying on MF v R [2024] NSWCCA 42 at [59] where the Court reiterated the principles set out in KT v R (2008) 182 A Crim R 571. Those principles were further identified by Hamill J in Sarhene v R [2022] NSWCCA 79 at [25].

70. In relation to young offenders acting in an “adult like manner” to offend, counsel relied on TM v R [2023] NSWCCA 185 where Yehia J said at [49]:-

“The qualification to the principles concerning young persons where they conduct themselves in an “adult like manner” should be applied with some caution. While in some cases, significant planning, or other indicia of mature decision-making, may result in a diminution of the relevant principles, the gravity of an offence does not, by itself, demonstrate “adult like” behaviour. The assessment must be one of maturity and conduct, not only the degree of violence. Here, the applicant engaged in violent conduct resulting in serious injury to the victim. However, the conduct had all the hallmarks of youth, including immaturity, absence of impulse control, poor self-regulation, and a tendency to go along with the group. I agree with the sentencing judge’s remarks that the distinction between “adult like” and “non-adult like” behaviour was unhelpful in this case.”

71. It was submitted that the present offending could be described as having “all the hallmarks of youth”. The offender was involved in relatively rudimentary tasks at the behest of other older offenders, and the background report had noted that his immaturity, poor judgment and lack of consequential thinking were contributing factors to his involvement in the offence.

72. Counsel highlighted the application of these principles in TH v R [2025] NSWCCA 121 and BP v R [2010] NSWCCA 159 and recently in R v Kovaleff [2023] NSWSC 302 per Rothman J at [124] to submit that principles of retribution may be of less significance and considerations of rehabilitation may be of more significance where emotional immaturity or a young person’s less than fully developed capacity to control impulsive behaviour contributes to the offending. Thus it was submitted that general deterrence should be afforded less weight and an emphasis be placed on rehabilitation. In addition his youth was relevant to assessing his moral culpability and the weight given to retribution.

73. Counsel referred to the onerous bail conditions with which the offender had complied since his release on bail and the delay of two years in bringing the matter to finality while the Crown waited receipt of evidence from overseas, as relevant matters to be taken into account on sentence. During that period, the onerous bail conditions had restricted his liberty in a significant way.

74. Counsel submitted that the offender could be appropriately sentenced by way of immediate release on recognizance with a lengthy good behaviour condition to address any risk of reoffending and the requirement that he engage in mental health treatment. It was noted that a good behaviour condition may extend beyond the term of any sentence imposed for a period not exceeding 5 years.

75. In the event that a custodial sentence was imposed, counsel advocated the application of s19 of the CCP Act to order that any sentence be served as a juvenile offender up to the age of 21 years. It was submitted that a finding of special circumstances may be made on the grounds set out in s19(4) of the CCP Act on the basis of the opinions set out in the report of Mr Sheptooha.

76. In her oral submissions, counsel for the offender referred the Court to Robertson v R [2024] NSWCCA 22 per Ierace J at [114]-[123] as an example of the application of the Bugmy principle which it was submitted, looms large in this sentencing exercise. At the time of the offending the offender was still living in the disadvantaged environment of his childhood and suffering from untreated mental health issues which have since come to light and for which he requires treatment.

77. Counsel rehearsed her submissions regarding the restrictive bail conditions and the manner in which he had progressed his rehabilitation. Counsel emphasised the preventative factors going against his risk of recidivism and in particular his employment and prosocial factors including his compliance with strict bail conditions and the fact that he had not reoffended.

78. Counsel rehearsed her submission that there should be a focus on rehabilitation for this young offender which should be given full effect here. In response to the Crown’s ultimate submission that a custodial sentence was warranted, counsel noted the offender’s very low role in the drug hierarchy, the menial tasks he was directed to carry out and his relatively brief involvement in a period over 2 days. Notwithstanding the large quantity of border controlled drugs involved, his moral culpability was significantly reduced having regard to his childhood disadvantage and mental health issues, including his need for ongoing treatment.

79. Counsel also referred to comparable cases while conceding that none were directly on point having regard to the significant subjective factors at play here.

Determination

80. Section 16A of the Crimes Act provides that in determining the sentence to be passed in respect of any person for a federal offence, the Court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. Section 16A(2) mandates that the Court must take into account the following relevant matters:-

(2)(a) – The nature and circumstances of the offence

81. The nature and circumstances of the offence are outlined in my summary of the agreed facts outlined above. It is clear from that summary, and the Crown has conceded, that the offender’s role in the attempt to possess the unlawfully imported border controlled drug was at the lower end of the hierarchy. He was aged 17 years and acting at the direction of the co-accused, Mokdassi, and following his orders. As is usually the case with drug importation enterprises, the full extent of the hierarchy is unknown, however, notwithstanding that he signed for the delivery of the pulley after Mokdassi refused to do so, his involvement concerned him carrying out menial tasks to assist those who were endeavouring to remove the contents of the pulley and notwithstanding his use of the key to open the premises at one stage, it was clear that he was not in a position of control. Whilst the offender was a willing participant, his role was limited, and he was reckless as to the nature of the substance contained within the pulley notwithstanding he must have understood it contained a substantial amount of drugs. Whilst the offending took place over a period of two days, it involved a limited amount of time on each of those days and when he was arrested, the offender was sitting in the rental truck where he had been for some time, which was demonstrative of his role at the lowest end of the operation.

(2)(d) – The personal circumstances of any victim of the offence and (e) any injury, loss or damage resulting from the offence

82. Due to the interception of this drug importation there was no dissemination of border controlled drugs into the community and thus no victim of this offence nor any injury, loss or damage resulting from it. However, the potential for great harm to the community is always present in importation offences involving border controlled drugs including attempts to import such prohibited substances. The importation of methamphetamine represents a scourge in our community which causes not only great harm to end users of the drug but also has a substantial impact on community resources, including policing, medical and hospital resources in addition to contributing to further criminal conduct within the community. It is for that reason that Parliament has prescribed the highest penalty for this offence of life imprisonment and/or a substantial fine which indicates the seriousness with which Parliament regards such offences. The maximum penalty is and remains a guidepost in the sentencing process.

(2)(f) – The degree to which the offender has shown contrition for the offence

83. The offender has demonstrated contrition and remorse for his offending conduct to the psychologist, Mr Sheptooha and has demonstrated some insight into the seriousness of his offending, although a substantial part of his remorse relates to the distress caused to his mother as a result of his offending conduct.

(2)(g) – The offender’s plea of guilty

84. The offender has entered an early plea of guilty to the offence which of itself demonstrates some remorse for his offending conduct. I assess the utilitarian value of his plea as a 25% discount on the sentence to be imposed.

(2)(j) and (ja) – General and specific deterrence

85. General deterrence is important in sentencing for offences involving the importation of border controlled drugs or attempts to so import drugs. A clear message must be sent to like-minded members of the community that Parliament has prescribed the highest penalties available for such offences and that the courts will impose condign punishment in appropriate cases and there is a high risk of detection and arrest, notwithstanding the egregious profits involved in such enterprises. Similarly, specific deterrence is important in that the offender must understand the seriousness of his offending and the serious consequences that would follow if he were to reoffend.

(2)(m) – The character, antecedents, age, means and physical or mental condition of the person

86. The offender was 17 years of age at the time of the offence is now aged 19 years. There was no dispute that he suffered a childhood of disadvantage by exposure to alcohol abuse and gambling addiction by his father who subjected him to corporal punishment as a young child. The principles enunciated by the High Court of Australia in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 are therefore applicable. The offender’s history of substance abuse from the age of 14 must also be taken into account, and I accept that he had symptoms consistent with diagnoses of a Major Depressive Disorder, PTSD and that as a result of his drug abuse, he suffered persistent auditory hallucinations and paranoid delusions consistent with a schizoaffective disorder and that his mental health contributed to his offending in a material way.

(2)(n) The offender’s prospects of rehabilitation

87. The offender has demonstrated progress with his rehabilitation since his arrest. Notwithstanding that he has been subject to strict bail conditions which have amounted to a considerable restriction on his liberty, he has been abstinent from drugs and alcohol, has obtained employment in which he is well regarded, is in a pro-social relationship and expecting a child. I therefore find that the offender has reasonable prospects of rehabilitation provided he remains abstinent from prohibited drugs.

Consideration

88. There are significant subjective factors to be taken into account in sentencing this offender. First, I find that this young offender was 17 years of age at the time of the offence. He had suffered a childhood of disadvantage as outlined above and whilst the deprivation may not have been profound, it warranted application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. In that case, the High Court found as follows:-

1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].

2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44].

3. A background of that kind may leave a mark on a person throughout life and compromise a person’s capacity to mature and learn from experience [43].

The application of these principles, and their impact in diminishing the offender’s moral culpability for the offending and how that further impacts the various matters set out in s16A of the Crimes Act was recently explained by Weinstein J (with whom Wright and Sweeney JJ agreed) in YZ v R [2025] NSWCCA 165 at [59] to [68]. The reduction in this offender’s moral culpability must therefore be given “full weight” in the sentencing synthesis (per Bugmy at [44]).

89. In addition, the offender’s mental health issues as outlined above played a material part in contributing to his involvement. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, McClellan CJ at CL held as follows:-

“Where the state of person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] – [24].”

90. Having regard to all of these principles means that there must be a diminished need for denunciation, retribution, and emphasis on general and specific deterrence for the offending to be taken into account on sentence.

91. I have also taken into account that the sentencing of this young offender has been delayed by two years due to the delay in obtaining evidence concerning the border controlled drugs from China. Whilst such a delay would not generally be unusual in this jurisdiction, it is a significant delay in the sentencing of a child for a serious indictable offence and has left this offender in a state of uncertainty with respect to the outcome of this sentencing process and its impact on his future. I have therefore taken the delay into account as a mitigating factor in accordance with the principles set out in R v Todd [1982] 2 NSWLR 517.

92. Section 6 of the CCP Act provides as follows:-

6 Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles—

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

93. Having regard to those principles there must be an emphasis on rehabilitation in sentencing this young offender. While such serious offending inevitably carries a custodial sentence, full effect must be given to the principles outlined above and the pro-social factors that weigh against this offender reoffending, namely his family’s pro-social support, his continuing employment and his abstinence from drugs and alcohol. These matters weigh heavily in the sentencing process against the objective seriousness of his offending, which I find did bear all the hallmarks of youth.

94. Section 17A of the Crimes Act provides that a Court shall not pass a sentence of imprisonment for a federal offence unless a Court, after having considered all other available sentences is satisfied that no other sentence is appropriate in all the circumstances of the case.

95. I have taken into account the fact that the offender has spent 14 days in custody and has complied with strict bail conditions for a period of two years and has progressed his rehabilitation in a significant fashion. The sentence will be back-dated to take into account the 14 days custody.

Sentence

96. After applying a discount of 25% for his plea of guilty, I intend to sentence the offender to a term of imprisonment of 3 years. This sentence reflects the serious nature of the offending conduct, however pursuant to s19AC of the Crimes Act, I make a Recognizance Release Order effective immediately. That Order is to be subject to a condition that the offender be of good behaviour for a period of 4 years from today. The Order is to be subject to a further condition that the offender undergo supervision from Community Corrections for the duration of the order, that he accept directions provided to him and that he undergoes appropriate treatment for his mental health issues as identified by Mr Sheptooha. He should understand that if he was to breach these conditions he will be brought back to Court and be resentenced in respect of this offence.

Orders

97. I hereby order as follows:-

1. SH you are convicted of the offence of attempt to possess a commercially quantity of an unlawfully imported border controlled drug pursuant to ss11.1 and 307.5 of the Criminal Code 1995 (Cth).

2. You are sentenced to a term of imprisonment of 3 years for this offence, to commence on 2 October 2025.

3. I order a Recognizance Release Order effective immediately, subject to the following conditions:-

1. You are to be of good behaviour for a period of 4 years.

2. You are to accept supervision by Community Corrections for the duration of that order.

3. You are to accept all directions from Community Corrections during the term of the Order, including the provision of treatment for the mental health issues set out in the report of Mr Sheptooha dated 10 July 2025.

4. You are to report to Community Corrections at Penrith within 7 days.

5. I further direct that the Registrar forward to Community Corrections a copy of the report of Mr Sheptooha dated 10 July 2025.

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Decision last updated: 16 October 2025