R v Wong

[2025] NSWDC 146

District Court

New South Wales

Medium Neutral Citation:

R v Wong [2025] NSWDC 146

Hearing dates:

27 March 2025

Date of orders:

23 April 2025

Decision date:

23 April 2025

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

[74] I make the following orders:

(1) The offender is convicted of the offences.

(2) The indicative sentences are set out above. I impose a total aggregate sentence of two years two months imprisonment commencing 1 November 2023 to expire on 31 December 2025.

(3) I impose a non-parole period of 1 year 5 months to expire on 31 March 2025.

(4) The offender is to be released from custody forthwith.

(5) I direct the offender to report to Community Correction NSW at their Sydney office within 5 days of her release from custody.

(6) The offender is to accept the supervision of NSWCC and abide by their reasonable direction during the term of her parole.

Catchwords:

CRIME — drug offences — supply prohibited drug — indictable quantity

SENTENCING — relevant factors on sentence — Form 1 offences

SENTENCING — subjective considerations on sentence — gambling addiction — personal use

Legislation Cited:

Crime (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Baden v R [2020] NSWCCA 23

DC v R [2023] NSWCCA 82

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81

DPP (Cth) v De La Rosa [2010] NSWCCA 194

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

Field v R [2020] NSWCCA 105

Giles-Adam v R; Preca v R [2023] NSWCCA 122

Hall v R [2021] NSWCCA 220

Lowe v The Queen (1984) 154 CLR 606

Muldrock v R (2011) 244 CLR 120

NGO v R [2017] WASCA 3

Parente v R [2017] NSWCCA 284

Pham v R [2013] NSWCCA 217

Postiglione v The Queen (1997) 189 CLR 295

R v Brown [2023] NSWDC 477

R v Brown [2023] NSWDC 477

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

RA v R [2024] NSWCCA 149

Robertson v R [2017] NSWCCA 205

Tukuafu v R [2024] NSWCCA 84

Texts Cited:

Re-Attorney General's Application under section 37 of the Crime (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Category:

Sentence

Parties:

Crown, Wong

Representation:

Crown: C Diebe

Defence: E James

File Number(s):

2023/00284555

remarks on sentence

1. On 30 July 2024 at Downing Centre Local Court the offender entered pleas of guilty to the following offences:

1. Sequence 14: Supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985.

2. Sequence 15: Supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985.

2. The offences carry a maximum penalty of 15 years imprisonment with no standard non parole period. The maximum penalty acts as a sentencing guidepost or reference point. It reflects the seriousness of the offences.

3. The offender asked the Court to take into account one count of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 when passing sentence with respect to sequence 14, and one count of deal with suspected proceeds of crime contrary to s 193C of the Crimes Act 1900 when passing sentence with respect to sequence 15.

4. Admitted on behalf of the Crown was the following:

1. Exhibit C1 - Charge Certificate

2. Exhibit C2 - Form 1 - sequence 2

3. Exhibit C3 - Form 1 - sequence 5

4. Exhibit C4 - Signed Agreed Facts

5. Exhibit C5 - NSW Criminal History

6. Exhibit C6 - Queensland Criminal History

7. Exhibit C7 - Custodial Criminal History

8. Exhibit C8 - State Parole Authority Documents

9. Exhibit C8a. - Breach of parole report dated 8 September 2023

10. Exhibit C8b. - Revocation order dated 27 September 2023

5. Admitted on behalf of Defence was the following:

1. Exhibit O1 – Report authored by Consultant Psychologist, Ms Susan Homeh Hawil dated 30 October 2024

2. Exhibit O2 – Character reference authored by the Offender’s mother, Ms Robyn Wong dated 11 November 2024

3. Exhibit O3 – Letter of apology authored by the Offender

4. Exhibit O4 – Statement of attainment relating to Certificate III in cleaning operations dated 14 October 2024

5. Exhibit O5 – TAFE statement of attainment in first aid and cardiopulmonary resuscitation dated 24 October 2024 and accredited program participation by individual offender

6. Exhibit O6 – TAFE transcript of academic record as of 4 November 2024

7. Exhibit O7 – Brief Intervention & Group Program certificate of completion dated 19 November 2024

8. Exhibit O8 – Achievement award for successfully completing theory in hygiene operations issued on 10 December 2024

9. Exhibit O9 – Letter authored by Offender Services & Programs relating to the Offender’s participation in the Addiction Support Program dated 23 January 2025

Agreed facts

6. On the evening of 6 September 2023 police executed a search warrant at a home in Reynolds Street, Balmain where the offender was living with her co-offender. There were other residents in the house, although the offenders were living in the top floor master bedroom.

7. During the walk-through police located and seized in the walk-in wardrobe of the offenders’ bedroom various resealable bags of methylamphetamine totalling 65.22 g (Form 1 to Sequence 14). Also found were two 500 ml bottles containing a total of 963.5 g of Butanediol (Sequence 14) and a further bottle containing 812.3 grams of Gamma Butyrolactone (Sequence 15). Additionally, cash totalling $2,535.00 in various denominations was also found inside a handbag in the master bedroom (Form 1 to Sequence 15).

8. Police also located seven smart phones, multiple small resealable plastic bags, ice pipes, drug scales, a black satchel containing two sets of drug scales, sponge and empty resealable bags, aluminium foil in a drawer with unused needles, multiple rubber bands in a drawer with numerous resealable plastic bags and seven sim cards inside a resealable plastic bag.

9. The offender’s phone revealed a large volume of messages showing involvement in drug supply in the weeks prior to her arrest including:

1. On 17 August 2023 the offender was involved in a conversation discussing quantities and cost of drugs. As part of the messages the offender, at the request of the purchaser, sent a photograph of the drugs.

2. On 20 August 2023, the offender was involved in a conversation with a purchaser which indicated that she had placed some “special juice" in a particular location on the front porch, supported by photographs.

3. On 25 August 2023 the offender was involved in a group conversation on Signal discussing how much was owed to each other.

4. On 25 August 2023 the offender was involved in conversation with respect to the supply of half a ball of methamphetamine. In a further conversation the offender indicated that “it will be 1750 for the food and to 2200 for the drink".

5. On 30 August 2023 the offender offered 100 ml of “drink" to another customer.

6. On 3 September 2023 the offender was involved in a text message conversation where she offered to deliver “one bag" for $350.00.

10. The offender was arrested for supply of drugs and conveyed to Newtown Police station where she declined to engage in an interview.

Criminal record

11. The offender’s criminal record commences in 2014 with various offences of dishonesty including obtaining financial advantage by deception for which the offender was convicted with no other penalty. The offender was detected committing a similar offence in 2016 in Queensland for which a fine was imposed with no conviction recorded.

12. The offender committed various drug-related offences including supply prohibited drug, possess prohibited drug and deal with proceeds of crime in 2019 for which an aggregate term of imprisonment was imposed. There were further drug-related offences in 2020. In November 2020 the offender was sentenced to an aggregate term of imprisonment for offences including robbery, armed with offensive weapon cause wounding/grievous bodily harm. The offender had been released on parole in August 2022.

13. According to the custodial history, the offender has committed various custodial infractions including a series of offences of unlawfully use phone and supply misleading particulars in late 2024. There were similar offences in late 2023.

Breach of parole report

14. The offender was released on parole on 25 August 2022 and her engagement with Community Corrections was considered satisfactory, characterised by her compliance with reporting and participation in counselling to address criminogenic risk factors. The offender was making progress with reintegration back in the community and was demonstrating positive lifestyle changes such as obtaining stable employment. As a result, in July 2023, the offender’s supervision was suspended given the offender’s perceived stability within the community and positive interactions with Community Corrections.

15. The breach of parole report followed the offender’s arrest for the offences for which she is to be sentenced, with a recommendation that a warning only be issued and the offender be continued to be managed in the community. Despite this report the offender’s parole was revoked effective 6 September 2023 on grounds that the offender had failed to comply with the good behaviour condition.

The offender's subjective case

Susan Hawil – consultant psychologist

16. The offender was assessed by Ms Hawil in October 2024 via audiovisual link from a Correctional Centre. The offender is the youngest of three children to biological parents with whom she had a close and loving relationship. Her mother resides in Queensland whilst her father passed away in 2016.

17. The offender had a somewhat unconventional family upbringing where her father began working as a stripper when she was 10 years of age. She would accompany her father to his work on Friday and Saturday nights where she would sit with other children whose parents attended the event. Her mother worked as a costume designer at a theatre. At the age of 13 her parents purchased and operated an adult shop and from the age of 16 her father began disclosing his infidelities to her.

18. At the age of 17 she began working as a hairdresser and at 19 moved to Brisbane with a friend where she began working as a stripper. By the age of 21 her parents had ceased operating the adult shop and thereafter purchased a food truck in a semi-residential area, although they incurred significant financial losses in doing so.

19. At the age of 16, the offender entered into a relationship for approximately 18 months where illicit substances were regularly used. In her early twenties, she entered into a further relationship which was emotionally abusive and at the same time started a personal training business. She subsequently relocated to Sydney where she struggled to establish a business, and she returned to Brisbane to re-engage with her former partner. She thereafter began escorting to pay off debts, following which she engaged in a further relationship and began working in real estate.

20. She has since been involved in other relationships that were not ideal including, more recently, with the co-offender.

21. The offender reported first consuming alcohol at the age of 13 or 14, which escalated in her late teenage years. She similarly commenced using cannabis at the same age, although by her twenties her drug use had escalated to using cannabis, ice, MDMA and GHB. The offender also reported problematic gambling since working as a topless waitress at the age of 30. She participated in various inpatient rehabilitation programs although reported relapsing when returning to the community.

22. The offender reported a protracted history of depression from an early age attributable to various adverse life events. When the offender was six or seven her older brother asked to remove her clothing and, in the years thereafter, he would demonstrate how to masturbate and encourage her to do the same. There was no physical contact involved.

23. Self-evidently, the offender was also involved in a pattern of dysfunctional relationships which impacted on her well-being and self-esteem. The death of her father in 2016 also impacted on her mental health. She consulted various psychologists without any particular success.

24. The psychologist completed various neuropsychological tests before concluding that a series of adverse life events had impacted on the offender’s mental health. There was a long history of substance use and gambling as well as use of illicit substances. The offender met the criteria for major depressive disorder and stimulant use disorder. The offender expressed remorse and accepted responsibility for her actions. A treatment plan was recommended.

Robyn Wong – offender’s mother

25. Ms Wong indicated that she was close to her daughter, and they had confided in each other over many years. The offender had demonstrated enormous generosity towards her. She had also been close to her father and was significantly impacted by his passing. Ms Wong described the offender as having a caring, loving and empathetic nature. She had previously had a close relationship with her two brothers which had been more strained in recent times.

26. The offender deeply regretted her past actions and lifestyle and appreciated, now given her age, that she needed to take positive steps for her future. She was hoping, having completed appropriate rehabilitation, to return to employment in the exercise industry with the ambition of again establishing her own business. Regrettably, due to living interstate, her mother was limited in the support she could provide but indicated she was prepared to do everything she could to assist her daughter in her rehabilitation.

Letter of the offender

27. The offender expressed considerable remorse and regret for her behaviour. She indicated that since returning to custody she had been drug free, providing a much clearer mind. It also enabled her to reflect on her past poor choices and the need to choose more carefully those with whom she associated. Having engaged with a forensic psychiatrist, she now appreciated the various issues in her life which led to her drug use. She was hopeful of returning to rehabilitation and to turn her life around. This would include obtaining employment with the support of her family.

Certificates of achievement and completion

28. The offender relies upon various courses undertaken whilst in custody which will clearly assist with her reintegration into the community. Further, documents revealed the offender attending an addictions support program provided by Corrective Services.

Crown submissions

29. The Crown noted that the offender had been in custody since her arrest on 6 September 2023, although the period until February 2024 was referable to the balance of her parole for the previous offences. However, the Crown conceded that the commission of the offences for which the offender is to be sentenced was the sole reason for the revocation of parole.

30. The Crown referred to the well-known principles relating to sentencing for drug offences and that the maximum penalty for each of the supply offences was 15 years. The quantity of the two primary supply offences were close to the commercial threshold (1 kg). Whilst there was little evidence as to the scale of the supply enterprise, there was a degree of organisation involved given the indicia of supply found in the unit, including drug ledgers, scales, resealable bags et cetera. Further, there was evidence of actual supply given the messages found on the offender’s phone. It was conceded that the offending was otherwise relatively unsophisticated. The relative position in the hierarchy was neither at the apex nor the bottom. It was accepted that the offender was a user-dealer. Both the supply offences were at the upper threshold for indictable supply nearing commercial quality. Whilst they were deemed supply offences there was evidence that the offender was involved in the supply.

31. An aggravating factor was that the offences were committed whilst the offender was on parole. A mitigating factor was the early guilty pleas. The submissions referred to relevant principles of parity as between the offenders.

32. The Crown contended, by reference to relevant authorities, the fact that the offences were committed to feed a gambling addiction was not generally a mitigating factor on sentence. Whilst it was accepted that the offender clearly experienced some adverse events in her childhood, it was contended that it was difficult to isolate the offender’s major depressive disorder from her drug and gambling addiction such as to find a causal link between the offender’s mental health and the offending which would otherwise result in a reduction of the offender’s moral culpability.

33. The offender's criminal history and breach of parole disentitled her to leniency. Whilst Community Corrections noted that the offender had not adequately addressed factors relative to her offending, it was clear that she had taken positive steps since being in custody. Overall, the offender’s prospects of rehabilitation remain somewhat guarded, and expressions of remorse need to be treated with some degree of caution.

34. Ultimately, it was contended that the s 5 threshold had been crossed and no penalty other than full-time imprisonment was appropriate. General and specific deterrence ought to be given significant weight for drug supply offences. In oral submissions the Crown contended that the Court would not be satisfied the offender’s relapse into drug use coincided with her cohabitation with the co-offender. In this respect, the Crown referred to the agreed facts that the co-offender had been residing with the offender in the Balmain residence since about mid-July 2023. However, the offender had told the psychologist that she relapsed into drug use several months earlier in March 2023.

35. With respect to parity, for the offences for which the offender was to be sentenced that were the same as the co-offender, there was no real distinguishing factors, with the significant evidence of supply relating to both offenders. Consideration would need to be given to the subjective case. Whilst both offenders committed the offences whilst on parole, it was more significant for the co-offender.

Offender’s submissions

36. It was conceded that the quantity of drugs was not insubstantial, and whilst this was relevant, it is not determinative of the sentence. The offender was entitled to full discount for the utilitarian value of the plea of guilty.

37. It was contended that the role of the offender and level of criminality, such as their position within the hierarchy, was more important in determining the sentence than the quantity of the drug. The Court would find that the offender was at the lower end of any drug supply hierarchy. Whilst there was clearly some degree of planning and a measure of financial gain, they would not be found as aggravating factors for the purposes of section 21A(2) of the Crime (Sentencing Procedure) Act 1999 (CSPA). The supply of drugs was primarily to fuel her own addiction, and any financial reward was expended on gambling and/or drugs.

38. Detailed reference was made to the offender's subjective circumstances, including the diagnosis of various mental health disorders. It was contended that the Court would find a causal connection between the various psychological conditions in the offending, such as to engage the principles in DPP (Cth) v De La Rosa [2010] NSWCCA 194.

39. The offender's criminal record disentitled her to leniency. It was contended that the offender had reasonable prospects of rehabilitation. She had demonstrated remorse. It was contended that a finding of special circumstances would be made. The offender would receive full credit for the entire time spent in custody since her arrest. Reference was made to principles of totality and proportionality in determining an appropriate sentence.

40. In oral submissions it was submitted that the Court would find the offender’s cohabitation with the co-offender led to the escalation in her drug use and these supply offences. The Court would take into account that the offender had otherwise been complying with her parole and it was only when exposed to adverse influences that she returned to drug use and supply. However, since being in custody, she remained abstinent from drugs and was seeking to address the underlying issues with the various courses completed.

36. The offender was essentially at a crossroads and the Court would take into account that potentially she had now turned the corner. As to the subjective matters, whilst it was conceded that the offender was not exposed to a deprived childhood, it was unusual and difficult for her. Whilst it was accepted there had been some infractions since her return to custody, they were not drug related. The findings and recommendations of the psychologist were relevant to the prospects of rehabilitation and a finding of special circumstances would be made to enable that rehabilitation to continue. The Court would accept the offender’s letter to the Court as being genuine.

37. Whilst the offender’s oral submissions contended the Court would consider any term of imprisonment to be served by way of an Intensive Correction Order, that submission was withdrawn in subsequent correspondence.

Consideration

43. In Parente v R [2017] NSWCCA 284, the Court (MacFarlan JA, Hoeben CJ at CL, Leeming JA, Johnson J and R A Hulme J) observed at [107] that sentencing in drug supply cases should be approached in a manner consistent with general principles, although it was appropriate that some matters be emphasised. First, it was necessary for the Court to be mindful of the purposes of sentencing contained in s 3A of the CSPA which relevantly includes general and personal deterrence as well as protection of the community. It was observed that a consistent message of deterrence was necessary. Community protection was also significant given the social impact of drug use. Secondly, it was necessary for sentencing Judges to remain mindful of the maximum penalty and any standard non-parole periods as legislative guideposts, observing that the drug supply offences were set at a high level. Thirdly, the Court adopted the observations of Simpson JA in Robertson v R [2017] NSWCCA 205 at [50], that where the facts of an offence demonstrate drug dealing to a substantial degree a sentence of imprisonment will ordinarily be imposed. Further, recognition of the serious social implications of drug dealing suggests in the ordinary cases a sentence other than imprisonment will fail to meet the sentencing objectives.

44. In Pham v R [2013] NSWCCA 217 McCallum J observed at [27] that:

“The critical proposition is that the quantity of the drug is a relevant but not determinative measure of the degree of seriousness of the offending. The Court must consider all of the circumstances informing that issue, including the role played by the offender, his or her state of knowledge, the reward to be received and any other relevant indicator of moral culpability or lack of it. That said, as recently explained by Latham J, the quantity of the drug remains a very material consideration in assessing the objective seriousness of a State offence against the Drug Misuse & Trafficking Act.”

45. The two drug supply offences for which the offender is to be sentenced involved significant quantities of each of the relevant drugs, well in excess of the indictable quantity and close to the commercial quantity threshold. Found in the premises were various items being indicia of supply. The evidence further establishes that the offender was involved in the supply of drugs given the various messages contained in the agreed facts.

46. Whilst it is difficult to determine the offender’s position in the drug supply hierarchy, I am satisfied that it was relatively low level, supplying to other users and associates who were likely dealing at street level. Whilst the offender’s drug supply operation involved a degree of organisation, I am satisfied that it was generally unsophisticated and exposed the offender to detection given her relatively low level in the drug supply hierarchy.

47. I am satisfied that each of the offences reflects relatively serious examples of the drug supply offending contemplated by the section.

48. The offender’s criminal record, whilst not an aggravating factor, disentitles her to leniency. An aggravating factor is the offender being on parole at the time the offences were committed. I accept that the custodial infringements were not drug-related and the most recent was in October 2024.

49. The offender is entitled to a 25% discount on the sentence that would otherwise be imposed for the utilitarian value of the plea of guilty. I am satisfied that the offender’s plea of guilty is a further mitigating factor in that it reflects the willingness of the offender to facilitate the course of justice: Baden v R [2020] NSWCCA 23; Giles-Adam v R; Preca v R [2023] NSWCCA 122. It is also consistent with the offender’s expressions of remorse.

50. I do not accept the Crown's submission that there are difficulties in isolating the offender’s major depressive disorder from her drug and gambling addiction so as to find a causal link between the offender’s mental health, thereby reducing her moral culpability for the offending. The psychologist noted the offender’s reporting of a protracted history of depression attributable to a series of adverse life events. These included the form of abuse to which the offender was subjected by her older brother. Specifically, the offender reported to the psychologist that when in pain she resorted to drugs and in this context felt betrayed and confused by the actions of her brother. The offender also reported the pattern of dysfunctional relationships and the death of her father contributing to her psychological state. There was also historical reference to a diagnosis of depressive symptoms arising from previous medical records.

51. I am satisfied that the offender’s exposure to adverse life events did lead to her suffering depressive conditions. This also coincided with her drug use as an early teenager being a time where clearly she was feeling vulnerable and impacted by the various adverse life events. I am satisfied that the offender’s underlying mental health contributed to her drug use, thereby leading to her offending. In the circumstances, I am satisfied that the offender’s moral culpability is reduced with deterrence, retribution and denunciation having a lesser role to play in determining an appropriate sentence: DPP (Cth) v De Le Rosa (2010) 79 NSWLR 1; Muldrock v R (2011) 244 CLR 120; DC v R [2023] NSWCCA 82.

52. However, that is not to say that deterrence does not remain a relevant factor in the sentencing process.

53. Prohibited drugs circulating in the community have a profound effect. As has been consistently observed by the Courts, in respect of sentencing for drug-related matters, there are significant consequences from the circulation of drugs in the community. In NGO v R [2017] WASCA 3, the Western Australian Court of Appeal observed that the illicit drug trade is a “scourge" inflicting significant damage on those who consume the drugs.

54. I accept the offender is genuinely remorseful for her offending given the history in the psychologist’s report, the letter from the offender’s mother and the offender’s letter to the Court. I accept the offender is at a crossroads in her life. She is now in her early 30s and her time incarcerated has provided an opportunity for her to reflect upon her past history of offending and the need to address underlying issues leading to her drug use over many years. This includes her involvement in dysfunctional relationships and her early childhood experiences, all of which has led to ongoing drug-related offences.

55. I am satisfied that despite the offender’s prior record of offending, and the circumstances the present offending, the offender has reasonable prospects of rehabilitation. The process of psychological assessment has allowed the offender to appreciate the underlying causes of her dysfunctional life to date. She clearly has the ongoing support of her mother which will aid her in rehabilitation. This rehabilitation has commenced with her activity whilst presently incarcerated. Further, the offender’s previous positive engagement with Community Corrections, prior to her relapse, provides some cause for optimism when eventually released.

56. I consider there are grounds for making a finding of special circumstances such that there ought to be an adjustment of the statutory ratio of the non-parole period. I accept that the offender’s behaviour is directly linked to a drug and gambling addiction and that she requires substantial assistance in this respect. I am satisfied that whilst the offender has made steps towards her own rehabilitation, clearly the offender should be given every opportunity to continue her rehabilitation in the community which will also include obtaining the assistance and treatment contemplated in the psychologist's report.

57. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the Court to invoke section 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.

58. The offender asked the Court take into account the offences on the Form 1 attached to each of the offences for which the offender is to be sentenced. In Tukuafu v R [2024] NSWCCA 84, Huggett J (with whom Ward P and Chen J agreed) set out the relevant principles when considering offences on the Form 1 at [129]. Further, at [130] her Honour observed: –

Taking a further offence on a Form 1 document into account for one or more of these purposes is permissible and may result in an increase in the penalty or sentence ultimately imposed. Where the further offence is relatively minor in its seriousness, it may add little to nothing to the otherwise appropriate sentence. Where the criminality involved in the further offence is significant or substantial, subject to proportionality, its effect on the sentence imposed may be “substantial” (Attorney General’s Application at [18]). However, that effect is not because the further offence increased the objective seriousness of the principal offence. Rather, it is because the appropriate sentence is determined by reference to numerous matters including the objective seriousness of the offence for which the sentence is to be imposed (considered without regard to any further offending on a Form 1 document) and a consideration of whether further offending on a Form 1 document should bear upon any of the purposes described in [129].

59. I accept that the relevant Form 1 offences place the various substantive offences in context: Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [24]. I am satisfied that the various Form 1 offences demand a modest increase in the penalty that would otherwise be imposed for the underlying offences. Despite earlier observations, there remains some need for personal deterrence and there is some community entitlement in terms of accountability for the offences: Re-Attorney General's Application under section 37 of the Crime (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

60. With respect to sequence 2, supply prohibited drug, attached to sequence 14, the amount of the drug is significantly greater than the indictable quantity although also significantly less than the commercial quantity threshold. The proceeds of crime offence, attached sequence 15, is a relatively modest amount. I have taken into account the offences on the Form 1 in determining the appropriate indicative sentences, which in my view, calls for a modest increase in the penalty that would otherwise be imposed.

61. Both offenders are to be sentenced for the supply offences committed 6 September 2023. The principle of parity is premised upon the concept of equal justice, requiring that “like should be treated alike" whilst accepting that if there are differences as between co-offenders “due allowance should be made for them": Lowe v The Queen (1984) 154 CLR 606 at [617] to [618]; Postiglione v The Queen (1997) 189 CLR 295 at [301].

62. The co-offender has a more extensive criminal record than the offender. While both offenders were on conditional liberty at the time of commission of the offences, the co-offender had not only been on parole but was also the subject of a Community Correction Order and he had also breached conditions to two separate releases on bail. Whilst I found both offenders' moral culpability is reduced by reason of underlying mental health conditions, the co-offender’s moral culpability is further reduced given my findings of a more abusive upbringing. I accept that both offenders have expressed genuine remorse, however I am satisfied that the offender’s prospects of rehabilitation are more optimistic. In the circumstances, and on balance, the co-offender’s sentence should reflect a modest increase in indicative sentences when compared to the offender. With respect to sequence 14, both offenders have an additional supply in the Form 1. However, with respect to sequence 15 the offender has an additional offence of deal with proceeds of crime on a Form 1, whereas the co-offender does not.

63. With respect to sequence 14, supply prohibited drug, and taking into account the additional offence of supply prohibited drug on the Form 1, an appropriate indicative sentence is 2 years 6 months less 25% for the utilitarian value of the plea of guilty, resulting in an indicative sentence of 1 year 10 months and 15 days.

64. With respect to sequence 15, supply prohibited drug, and taking into account the additional offence on the Form 1 of deal with suspected proceeds of crime, an appropriate indicative sentence is 2 years 3 months less 25% for the utilitarian value of the plea of guilty resulting in an indicative sentence of 1 year, 8 months, 7 days.

65. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ): R v Brown [2023] NSWDC 477 at [90].

66. In RA v R [2024] NSWCCA 149, the Court noted that “the severity of the sentence increases at a rate that is not linear in comparison with the increase in length. That is, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half that time.”

67. Whilst there will need to be some accumulation reflected in the total aggregate sentence, it has a lesser role to play in determining the aggregate sentence given the underlying factual commonality.

68. An appropriate aggregate sentence is 2 years 2 months.

69. Given the aggregate sentence is 3 years or less, ordinarily the Court would give consideration as to whether the sentence be served by way of an Intensive Correct Order. However, the accused abandoned any such argument, no doubt in circumstances that it was likely the offender will be eligible to be released on parole within a relatively short period from the passing of sentence.

70. The offender’s parole was revoked effective from the date of her arrest by reason of the commission of the offences for which she is to be sentenced. Whilst the fact that the offender was on parole does not elevate the objective seriousness of the offences, it has an aggravating effect on the imposition of the sentence as explained in Field v R [2020] NSWCCA 105 in so far as it aggravates the sentence by affecting considerations of punishment, deterrence and protection of the community: R v Brown [2023] NSWDC 477 at [69].

71. In such circumstances, the relevant authorities establish that the sentencing Judge has significant discretion in determining the appropriate commencement date of the sentence. Relevant considerations includes that the imprisonment for the period of the revoked parole was due to the original sentence, the length of period the offender was on parole prior to the current offending and the length of the parole period, the nature of the offence for which she was on parole including any similarity and the reason for revocation of the parole.

72. The offender has been on parole for a relatively lengthy period prior to commission of these offences. The previous offences were in part drug related. I am satisfied that the sentence ought to be backdated considering a significant period of the time served for the balance of the previous sentence. The sentence is to be backdated to commence on 1 November 2023.

73. In determining the non-parole period it is necessary to take into account the total time in custody commencing 6 September 2023.

Orders

74. I make the following orders:

1. The offender is convicted of the offences.

2. The indicative sentences are set out above. I impose a total aggregate sentence of two years two months imprisonment commencing 1 November 2023 to expire on 31 December 2025.

3. I impose a non-parole period of 1 year 5 months to expire on 31 March 2025.

4. The offender is eligible to be released forthwith with respect to the offences for which the offender is convicted.

5. I direct the offender to report to Community Correction NSW at their Sydney office within 5 days of her release from custody.

6. The offender is to accept the supervision of NSWCC and abide by their reasonable directions during the term of her parole.

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Decision last updated: 29 April 2025