Robertson v R - [2024] NSWCCA 22

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Robertson v R [2024] NSWCCA 22
Hearing dates: 6 December 2023
Decision date: 28 February 2024
Before: Harrison CJ at CL at [1];
Wilson J at [2];
Ierace J at [3]
Decision:
(1) Grant leave to appeal;
(2)   Allow the appeal on grounds 1 and 2;
(3)   Quash the sentence imposed on the applicant by Judge McLennan in the District Court on 24 May 2022;
(4)   In lieu thereof, resentence the applicant to a term of imprisonment for a period of 4 years and 6 months, backdated to commence on 22 April 2021 and to expire on 21 October 2025, with a non-parole period of 2 years and 11 months, to expire on 21 March 2024.

Catchwords:
CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Supply of not less than commercial quantity of drug — Where applicant supplied significantly lower quantities of drugs prior to the involvement of police undercover operative — Whether sentencing judge erred in assessing the objective seriousness of the offence on the basis that it was designed to accrue a financial benefit
CRIME — Appeals — Appeal against sentence — Where sentencing judge took account of the applicant’s background of profound childhood deprivation as part of instinctive synthesis but refused to reduce the applicant’s moral culpability — Whether the sentencing judge failed to correctly apply the principles of Bugmy v The Queen (2013) 249 CLR 571

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 25D(2)(a), 32, 33
Drug (Misuse and Trafficking) Act 1985 (NSW) ss 10(1), 25(1),(2), 32(1)(c),(g)

Cases Cited:
Baines v R [2023] NSWCCA 302
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
CDPP v De La Rosa [2010] NSWCCA 194
Chiarlini v R [2023] NSWCCA 227
Cicciarello v R [2009] NSWCCA 272
Harris v R [2023] NSWCCA 174
Hejazi v R [2009] NSWCCA 282
Hoskins v R [2021] NSWCCA 169
House v The King 55 CLR 499; [1936] HCA 40
Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37
Parente v R [2017] NSWCCA 284
Quayle v R [2010] NSWCCA 16
R vHenry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Taysavang v R; Lee v R [2017] NSWCCA 146

Category: Principal judgment
Parties: Bodene Robertson (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Roy (Applicant)
J Styles (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2021/112608
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

24 May 2022

Before:

McLennan DCJ

File Number(s):

2021/112608

HEADNOTE

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

On 24 May 2022, the applicant, Bodene Robertson, was sentenced in the District Court in Lismore to 6 years imprisonment with a non-parole period of 3 years and 6 months, for supplying not less than a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985 (NSW).

The facts of the offending were to the following effect. On nine occasions between 21 January 2021 and 22 April 2021, the applicant supplied an undercover operative (UCO) with quantities of cocaine totalling 532.01g, in exchange for cash payments totalling $174,000. The applicant also supplied small quantities of cocaine, being 1g and 2g, on two separate occasions during this time period to others, and had 9.96g of cocaine located in his car when he was arrested. These three offences were taken into account as Form 1 offences.

The applicant sought leave to appeal against his sentence on four grounds. The first ground was that the sentencing judge erred regarding the assessment of objective seriousness of the offence by finding it to be in the midrange because it was “designed to accrue a financial benefit”. The second ground was that the sentencing judge erred with respect to the applicant’s subjective case by failing to correctly apply the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571 and Henry v R (1999) 46 NSWLR 346; and finding that his background of profound childhood deprivation did not reduce his moral culpability; or otherwise failing to afford requisite weight to the applicant’s subjective case. The third ground was that the sentence was manifestly excessive. The fourth ground was that the applicant had a justifiable sense of grievance in light of the sentence imposed on his co-offender, Putu Winchestor Stanton, in a separate sentencing decision.

The Court held (per Ierace J, Harrison CJ at CL, Wilson JJ agreeing) that leave to appeal be granted, and the appeal be allowed on grounds 1 and 2. The applicant was re-sentenced to a term of imprisonment for a period of 4 years and 6 months, backdated to commence on 22 April 2021, with a non-parole period of 2 years and 11 months.

As to ground 1

Engaging in a drug offence, such as supply or importation, in order to repay a drug debt or to finance a drug addiction is not mitigatory of the offence’s objective seriousness. However, doing so for financial reward, either exclusively or beyond what is required to repay a drug debt, may increase the objective gravity of the offending: Ierace J at [90]; Harrison CJ at CL agreeing at [1]; Wilson J agreeing at [2].

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 [261]; Quayle v R [2010] NSWCCA 16 cited

To the extent that engaging in a drug offence to repay a drug debt or finance a drug addiction may be construed as a form of seeking financial gain, it is the purpose of that financial gain that determines its relevance in the sentencing exercise: Ierace J at [91]; Harrison CJ at CL agreeing at [1]; Wilson J agreeing at [2].

Hejazi v R [2009] NSWCCA 282 [12] referred to

The manner and context of the reference to the applicant’s motive in the sentencing decision demonstrates that the sentencing judge treated “financial gain” as the applicant’s primary motive and a significant factor in fixing the objective seriousness of the offence, whereas the reasons behind the financial gain were of little consequence in that exercise. The sentencing judge, thus, fell into error by placing little or no weight on the applicant’s motive for engaging in the offence in determining its objective seriousness: Ierace J at [93]; Harrison CJ at CL agreeing at [1]; Wilson J agreeing at [2].

As to ground 2

An offender who planned the offence for which they are being sentenced, when that factor is considered with all the relevant evidence, may not receive a reduction of the offender’s moral culpability. However, it is incorrect to state that an offender’s moral culpability cannot be reduced pursuant to an application of the Bugmy principles if the offence is pre-planned: Ierace J at [110], [111]; Harrison CJ at CL agreeing at [1]; Wilson J agreeing at [2].

Baines v R [2023] NSWCCA 302; Bugmy v The Queen (2013) 249 CLR 571; Chiarlini v R [2023] NSWCCA 227; Harris v R [2021] NSWCCA 322; Hoskins v R [2021] NSWCCA 169; Taysavang v R; Lee v R [2017] NSWCCA 146 considered.

The observations by the plurality in Bugmy at [43] and [44] that profound childhood deprivation “may compromise the person’s capacity to mature and to learn from experience”, that the effects “do not diminish with the passage of time” and apply “notwithstanding that the person has a long history of offending”, acknowledge that its impact on an offender’s moral compass may be embedded and is not necessarily, or easily, responsive to a change in circumstances for the better. Accordingly, an offender’s awareness that the offence is wrong, and their earlier positive achievements, are not pivotal considerations on which the application of Bugmy turns: Ierace J at [114]; Harrison CJ at CL agreeing at [1]; Wilson J agreeing at [2].

Bugmy v The Queen (2013) 249 CLR 571; Chiarlini v R [2023] NSWCCA 227 considered.

The sentencing judge applied incorrect principles when determining whether the applicant’s moral culpability could be reduced, pursuant to an application of the Bugmy principles, thus establishing error in the sense of House v The King 55 CLR 499; [1936] HCA 40: Ierace J at [116]; Harrison CJ at CL agreeing at [1]; Wilson J agreeing at [2].

As to grounds 3 and 4

Error having been established in grounds 1 and 2, it is unnecessary to consider grounds 3 and 4.

As to re-sentence

On resentence, the applicant’s moral culpability is significantly reduced, by reason of two factors, the applicant’s background of profound childhood deprivation, and his mental health diagnoses, in particular, his depression and anxiety, which contributed to his decision to engage in the offending behaviour. The applicant should be resentenced to imprisonment for a period of 4 years and 6 months, backdated to commence on 22 April 2021, with a non-parole period of 2 years and 11 months: Ierace J at [123], [131]; Harrison CJ at CL agreeing at [1]; Wilson J agreeing at [2].

JUDGMENT

HARRISON CJ at CL: I agree with Ierace J.
WILSON J: I also agree with Ierace J.
IERACE J: The applicant seeks leave to appeal against a sentence imposed on him by Judge McLennan in the District Court at Lismore on 24 May 2022, following a plea of guilty in respect of one count of supplying not less than a commercial quantity of a prohibited drug (532.01g of cocaine) contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985 (NSW) (the Act) (the offence). The maximum penalty for the offence is 20 years imprisonment and there is a standard non-parole period of 10 years imprisonment. A commercial quantity is 250g.
Three offences were taken into account on a Form 1, pursuant to ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). The applicant received an overall term of 6 years imprisonment, with a non-parole period of 3 years and 6 months, backdated to commence on 22 April 2021, which was the date of his arrest in respect of these matters and his entry into custody. The sentence will expire on 21 April 2027 and the applicant will become eligible for release on 21 October 2024.
By a notice filed on 14 June 2023, the applicant sought leave to appeal against his sentence on three grounds:

“1.   His Honour erred with respect to the assessment of objective seriousness, including in particular by finding it to be in the midrange because the offending was ‘designed to accrue a financial benefit’
2.   His Honour erred with respect to the applicant’s subjective case, including by:
a.   finding the applicant’s background did not reduce his moral culpability;
b.   failing to correctly apply the principles in Bugmy v The Queen (2013) 249 CLR 571 and Henry v R (1999) 46 NSWLR 346; and

c. otherwise failing to afford the applicant’s subjective case requisite weight
3. The sentence was manifestly excessive”

Following the sentence of a co-offender, Putu Sugiarta Winchester-Stanton (the co-offender), on 16 November 2023 by Hunt DCJ, the applicant filed an application for leave to rely upon a fourth ground, as follows:

“4. The applicant has a justifiable sense of grievance in light of the sentence imposed on his co-offender, Putu Winchester-Stanton.”

For the reasons that follow, I am of the view that error is established by grounds 1 and 2 and that a lesser sentence is warranted. That being so, it is unnecessary to consider grounds 3 and 4.

The sentence hearing

The Crown’s bundle on sentence

The Crown bundle included a statement of agreed facts, the applicant’s criminal and custodial histories and a sentencing assessment report.

The statement of agreed facts

The agreed facts, briefly stated, are to the effect that in December 2020, New South Wales police commenced an investigation into a group that were suspected of supplying cocaine in the Byron Bay and Mullumbimby area. The applicant was one of the suspects. On nine occasions between 21 January 2021 and 22 April 2021, an undercover operative (UCO) was supplied by the applicant with quantities of cocaine ranging between 27.73g and 139.1g, and totalling 532.01g according to the indictment,^[1] in exchange for cash payments that came to a total of $174,000. The nine supplies occurred in public places and were monitored by police. Consequent to the monitoring, police established that the applicant would obtain the cocaine from the upline supplier immediately beforehand and convey the purchase money back to the upline supplier immediately afterwards. On the first supply, the upline supplier was not observed. On seven of the eight subsequent occasions, the upline supplier was observed and identified as the co-offender.
1. A tally of the nine individual supplied quantities specified in the agreed facts, is 530.62g.
On the remaining supply, the applicant told the UCO that his:

“… boss has gone away for the week and left someone in charge, so he’s up the road waiting for me ... I don’t have it [drugs] on me, l’ve got to go and get it.”

The applicant was observed to drive to a location where he received a quantity of cocaine from another co-offender, Clayton MacDonald, which he supplied to the UCO, and then returned to Mr MacDonald with the purchase money.
Following his arrest, the applicant participated in a recorded interview in which he essentially denied the offences. Another arrest that resulted from the same investigation was of Alyse Cameron, who was the applicant’s co-habiting partner at the time of the investigation until March 2021.
The background to the three Form 1 offences was that, on some occasions during the investigation, the applicant supplied others with small quantities of cocaine. He supplied 1g on 15 February 2021 and 2g on 2 March 2021, contrary to s 25(1) of the Act. The maximum penalty for each of these offences was 15 years imprisonment: s 32(1)(c) and (g) of the Act. The agreed facts include text exchanges between the applicant and Ms Cameron, which are the evidentiary basis for the two supplies on the Form 1. They suggest that the applicant was occasionally skimming or diluting some cocaine intended for supply for his own use.
When the applicant was arrested on 22 April 2021, police located 9.96g of cocaine in his vehicle. He was charged with the possession of a prohibited drug contrary to s 10(1) of the Act, which was the third Form 1 offence, for which the maximum penalty was 2 years imprisonment.
The applicant entered a plea of guilty in the Local Court, entitling him to a discount of 25 per cent from any sentence that would otherwise have been imposed, pursuant to s 25D(2)(a) of the Sentencing Procedure Act.

The applicant’s criminal history

Between the age of 18 and 23, the applicant had two convictions for driving with a mid-range Prescribed Concentration of Alcohol (PCA), two convictions for driving whilst his licence was suspended, and one for common assault. Between the ages of 24 and his arrest when aged 32, he had three convictions for possessing a prohibited drug, three convictions for driving with an illicit drug in his blood and one conviction for driving during his disqualification period.
In November 2019, the applicant received a twelve months’ community correction order (CCO) for driving while disqualified (the second or more such offence) and 80 hours community service work. On 15 February 2021 (which was the same date as one of the supplies to the UCO), he received a second CCO for a period of 2 years commencing on that date and expiring on 14 February 2023 for one count of possessing a prohibited drug. A condition for the second CCO was “drug and alcohol counselling as directed”.
The applicant had not previously received a sentence of imprisonment.

The sentencing assessment report

The sentencing assessment report, which was prepared by a Community Corrections Officer four months before the sentence, profiled the applicant as a single man with no dependents and “limited friends”. The applicant has two brothers, who are 9 and 12 years older than him. He had reconnected with them, who were described by the author as appearing to be prosocial and a good source of support for him. His source of income at the time of his arrest was Centrelink benefits, although he had a successful landscaping company until January 2021.
The applicant reported that he increased his drug usage as a form of self-medication for head injuries that he suffered during a home invasion in 2019. By the time of his arrest, he was using 7g to 14g of cocaine a day and explained the offence as being consequent to his addiction:

“At the time [the applicant] stated he was in the depths of addiction and was in the cycle of selling to support his own habit.”

The author of the sentencing assessment report noted that the applicant had completed the 80 hours of Community Service work that was a condition of the first CCO. In January 2021, he participated in the Magistrates Early Referral Into Treatment program (MERIT). Prior to his arrest, the second CCO had been suspended “due to his low risk of reoffending”.
The author assessed the applicant as having a “medium risk of reoffending” according to the Level of Service Inventory – Revised (LSI-R) assessment tool.

The defence bundle on sentence

The defence tendered a report by clinical psychologist Tim Watson-Munro, an affidavit sworn by the applicant’s brother who is 9 years older, who I will refer to by the pseudonym Frank, a newspaper article, certain medical documentation and a summary of records of lockdowns until four months before his sentence hearing that the applicant had experienced during his remand.
Annexed to Frank’s affidavit is an affidavit by a District Officer with the Department of Community Services, Lynn Jervis, dated 10 December 1999 (when the applicant was aged 11) who was the Departmental officer with responsibility for his case at that time. The material provided to Mr Watson-Munro included Frank’s affidavit, and thus also Ms Jervis’s affidavit. The history taken by Mr Watson-Munro of the applicant is consistent with that contained in the two affidavits, to the extent that they overlap. The history of the applicant in the three documents was accepted by the sentencing judge. As there is considerable overlap between them, in the interest of brevity, I will provide a condensed summary of the history in Mr Watson-Munro’s report and Frank’s affidavit, in the course of which I will separately summarise Ms Jervis’s affidavit.

The personal history and background of the applicant

Mr Watson-Munro characterised the family and personal childhood history that he took from the applicant as “a complex clinical and developmental history, characterised by significant trauma during his formative childhood years”. It was as follows:

“[The applicant] was born in Bellingen in October 1988. He has two brothers … with whom he enjoys a positive relationship. His mother is deceased and he has had no contact with his father for about 15 years. He stated that his father suffered a Substance Use Disorder referable to heroin and attendant to this has a forensic history. He stated that his parents separated when he was 5 years of age and that he was essentially raised by his mother from that time onwards. He alleges that during his early adolescence, his father would leave him in a vehicle, whilst he undertook break and enter crimes.
[The applicant] stated that he was essentially raised by his mother who remained single, living in the Byron Bay area. [The applicant] stated that his mother too was addicted to heroin and believes that this was the case during the period of her pregnancy with him. He stated ‘she used heroin for most of my life ... she was on Methadone that she would top up with heroin’. In passing, the fact that both his parents were addicted to narcotics raises the possibility of a genetic component to [the applicant’s] own history of drug addiction.
[The applicant] reported that even whilst his parents were together, he was at times emotionally and physically neglected. By way of example, at the age of 3 years, he was kicked in the head by a horse, leading to him being airlifted to Sydney, where he remained at the Royal Children’s Hospital for, he thought, between 9 to 12 months. I have not sighted hospital documents referable to this event but it is clear that his injuries were severe given the amount of time that he was hospitalised. [The applicant] reported that when he returned to live with his family, he had to re-learn talking and had difficulty with walking and general co-ordination for a time. At the time of the injury the family was living on a farm near Armidale in New South Wales. He stated that upon being airlifted to the Royal Childrens’ Hospital at Camperdown, he underwent surgery, which resulted in, he believes, included 120 sutures referable to internal and external repairs.” (emphasis in original)

Mr Watson-Munro stated that the applicant’s cognitive issues, apparently related to the head injury, included “considerable problems in the classroom referable to concentration, as well as behaviour”. The tendered newspaper article, in the Armidale Express, entitled “Boy (3) kicked by horse”, dated 18 October 1991, concerned this injury. It referred to the injury as a “depressed skull fracture” and stated that the applicant had presented himself at the “house gate with a head wound”. He was taken by air ambulance to Camperdown Children’s Hospital.
Frank stated that their parents were using drugs and became addicted to heroin when the applicant was “very young”. Shortly after the applicant’s return from hospital, they separated. The applicant stayed with their mother and his two brothers moved away with their father. In 1992, their parents reunited and their mother was approved for state-funded accommodation in Byron Bay. Their parents remained “heavy users of heroin and [the applicant] was exposed to this from a very early age and all through his formative years”. The two older brothers left the home “as soon as we were old enough”. In 1992 (at which time I note the applicant would have been 4 or 5 years old), their father was charged with drug offences, for which he served about four years in prison.
Ms Jervis’s affidavit, which was filed in the Local Court at Coffs Harbour in support of an application for the applicant to be taken into State care, provides an independent and contemporaneous picture of the subsequent phase of the applicant’s life. She stated that in September 1997 (when the applicant was aged 8) he presented with his mother at Byron Bay hospital with burns to his fingers “caused while he was cooking dinner in hot oil”. His mother was “staggering, incoherent, and unable to give a history”. The notification could not be followed up because the family moved.
On 15 September 1999, Ms Jervis was notified that the applicant (then aged 10) was selling firecrackers and cannabis at Dorrigo Public School. She stated:

“It is alleged that [the applicant] was trying to obtain money for his father who is a known drug addict. [The applicant] was also reported to be physically neglected – not enough food etc in the two weeks prior to this.”

Ms Jervis continued:

“On 30.09.99 a Child Protection Notification was received that [the applicant] had been found by Police in Coffs Harbour in the company of his father … and another male. The two adults had been injecting heroin and there were syringes lying in the car where [the applicant] was sitting. Stolen goods were also found in the car. Both adults concerned in this incident were charged and [the applicant] returned to Dorrigo to live with his father and his father’s de facto … Departmental Officers spoke with [the applicant] at Dorrigo Public School following this incident.
During the weekend 4-5.12.99 [the applicant’s father] was arrested whilst attempting to break and enter in Coffs Harbour. He was charged and bail refused. He is currently in Grafton Hospital in detox and expected to be discharged to Grafton jail by 12 Dec. to await Court appearance. Prison Officers have advised that due to the natural father’s current high levels of aggression it would be advisable to postpone discussions with him until he has been returned to the security of Grafton Jail.
Departmental Officers spoke with [the applicant] and his natural father’s de facto … in Dorrigo on 8 December. [The applicant] was in an anxious state about his father being in jail and requested that the Department assist him to live with his mother … He advised that he had tried to phone his mother in Byron Bay but had been told that she was now living in the Cairns area. [His father’s de facto] advised that [the applicant] was suffering from shingles as a result of the stress of worrying about his father. [She] stated that she is available to care for [the applicant] until Departmental Officers can assess a suitable long term placement.
[The applicant] has resided with [his father] for the past two years. The current whereabouts of his mother … is not known. She is believed to be an intravenous drug user and to have moved to the Cairns area. Efforts are currently being made by this Department to locate [her] and advise her of [the applicant’s] situation. [The applicant] is currently residing with his father’s de facto … at Sweetwater Caravan Park, Dorrigo.”

Mr Watson-Munro referred to the period when the applicant, aged 9, went to reside with his father, as “unstable and dislocated”. Mr Watson-Munro continued:

“He reported that there was a period whilst living with his father that they were in fact living in his car for a period of months and during this time his father would commit break and enters to support his addiction. His sense of isolation was compounded by an absence of contact with his mother, who at that time was working on a fishing trawler in Cairns. He stated that when not living in the car, his father stayed in a caravan with a female partner and it was there that they were living when [the applicant] was taken into the care of the Department of Community Services (DOCS). Once his mother was relocated, she returned to Byron Bay, with him then going back to live with her. He stated that he then finished his primary education at the Byron Bay Public School and then the Byron High School, where he completed Year 10.”

Frank stated that when their mother returned to Byron Bay to care for the applicant, she resumed her use of heroin. The applicant attended high school between 2000 and 2004, then obtained employment and moved in with friends. He worked in a chicken factory, an ice factory and then in a restaurant.
In 2006, the applicant had a serious car accident when a vehicle he was driving collided with a tree. He was charged with driving with a mid-range PCA and driving while his licence was suspended. He suffered spinal fractures and was hospitalised for two weeks, following which he wore a body brace for six months and was prescribed analgesic medication.
Frank stated that in 2008 (when the applicant would have been aged about 20), he moved in with one of his brothers in Sydney, which was a period of stability, including employment (with Telstra) for two years. In 2010 their mother was diagnosed with cancer. The applicant moved back to Byron Bay to be her full-time carer. She died in 2012. Frank stated that the applicant was in a relationship from 2012 to 2014, “living a stable and relatively happy life” in the Northern Rivers region. They broke up in 2014 and the applicant returned to Sydney, moved in with his elder brother and regained employment with Telstra in a managerial role. In 2016, he returned to Byron Bay and his relationship recommenced.
Frank continued:

“17   In 2018 they broke up again and [the applicant] spiralled into drug usage. He became pretty fragile mentally and emotionally and ended up living in his car.
18   My brother and I got together with [the applicant] and we helped [him] pull himself together and we assisted him to purchase equipment for a home maintenance lawn mowing business. He worked so hard and was getting lots of work and doing well …
19   [The applicant] continued working hard and was successful and in 2019 met another lady who had a young child. They began an intense and loving relationship but when it ended very suddenly in 2020 [he] spiralled back into heavy drug usage.
20   Then in 2020 he was also attacked in a home invasion as he had run up a large drug debt. He began selling off his garden tools, then his tractor and slasher and finally his work truck. He was still in debt and was started to deal drugs to pay off some of the debt. By the time of [the applicant’s] arrest he was using very large quantities of cocaine and was in severe debt and was physically and mentally quite unstable and unwell.”

Other aspects of the psychologist’s report

Mr Watson-Munro obtained a drug and alcohol history from the applicant, to the effect that he commenced drinking alcohol at age 15 and by the age of 16, his alcohol consumption was “problematic” and he abused it “in varying degrees of intensity” since then. He reported occasional alcoholic blackouts. He was using MDMA and hallucinogens at the age of 16 and had had “a significant involvement with illicit drugs, including cocaine, crack cocaine, ice, MDMA, cannabis, in addition to benzodiazepines and Seroquel”.
The applicant elaborated on his drug use following the breakdown of his relationship in 2019 and his involvement in a new relationship with a user of drugs, at that time:

“… in the context of their co-dependency their drug use escalated. [The applicant] stated that the drugs he was using at that time were crack cocaine, in addition to crystal methylamphetamines (ice). He stated that his drug use continued for about a year before his brother again intervened, with him returning to Sydney. [The applicant] stated at that stage he was severely depressed with suicidal ideation and completely unable to manage his life.
Upon his return to Byron Bay and with the assistance of his brother, he established a gardening and lawn mowing business. His brother capitalised the establishment of the business by purchasing the necessary equipment. It is clear however that by the time that he sold his business equipment, his addiction had reached a very high level. It would appear that the sale of the equipment essentially related to his overarching addiction and his need to acquire money to buy drugs …”

The applicant told Mr Watson-Munro that the 2020 home invasion led to a further escalation in his drug use:

“[The applicant] reported that from that time onwards he struggled with his addiction, with his depression being aggravated by the breakdown of a relationship with a woman who was pregnant with his child. He stated that the pregnancy was terminated causing him further despair. Following that event he developed additional symptoms referable to nightmares, flashbacks, anxiety, social withdrawal and hypervigilance to danger.”

The applicant described his level and circumstances of supplying drugs prior to supplying the UCO:

“[The applicant] stated that his crack cocaine use escalated from about the time that he became involved in selling drugs to the undercover agent. He acknowledged that prior to that he was selling comparatively smaller amounts involving 1gram at a time and at the most 3 grams to support his habit. He stated that he would purchase grams, dilute them by 50% and keep half a gram for himself. The quantity of drugs that he used escalated in the context of his involvement with the undercover agent, leading to a further escalation in his addiction.”

The applicant told Mr Watson-Munro that, by the time of his arrest, he was using up to 5g of cocaine a day, which he would convert to crack cocaine and smoke. A side-effect was that he would eat less. He is about 180cm tall and at the time of his entry into custody he weighed 69kg. At the time of the interview with Mr Watson-Munro, he weighed 99kg. As well as ice and cocaine, he used Xanax, Valium and Seroquel to “come down” and sleep.
Following the 2006 car accident, the applicant suffered from chronic pain syndrome. He continued to be affected by pain arising from his back injury, for which he took Panadeine Osteo three times daily, as well as an anti-depressant. Mr Watson-Munro stated:

“[The applicant] acknowledged that he was using drugs as a means of self-medication. This was in the context of unremitting symptoms of depression, anxiety and low self-esteem, dating back to his formative pre-adolescent years.”

As to treatment for his drug addiction, Mr Watson-Munro noted:

“[The applicant] stated that he has had no effective treatment over the years. He acknowledged that he undertook the MERIT Program … This however was of limited benefit to him, which is well reflected in the continuation of his drug use.”

Mr Watson-Munro diagnosed the applicant as having significant symptoms of a severe and recurring Depressive Disorder, an Anxiety Disorder, features of Post Traumatic Stress Disorder (PTSD), which developed following the home invasion, and a Substance Use Disorder, which was in partial remission. He considered that, although the applicant’s physical health had improved on remand, he remained significantly depressed, which has been exacerbated by the prison restrictions occasioned by lockdowns, partly due to the COVID-19 pandemic.

“[The applicant] stated that because of repeated lockdowns, he has not been able to access treatment and claims by way of example that it took seven months to see a Medical Practitioner. To closer history taking, [the applicant] believes that of the 370 days approximately that he has spent in custody, he has been locked in his cell for at least 80 days. When most recently reviewed he had been subject to a 12 day lockdown with him then being permitted out of his cell for exercise for half a day every three to four weeks.”

Mr Watson-Munro noted that the applicant “expressed appropriate remorse for his behaviour”, elaborating as follows:

“Whilst the issue of remorse is difficult to gauge, there are a number of positive indic[a]tors in this case which speak to [the applicant’s] contrition. These include his motivation to change, his desire for treatment, his appreciation of the impact of his offending behaviour on the community, in addition to his family, who have all suffered as a consequence of his actions. It is telling that despite his actions, his family, by his account and as reflected in the Affidavit material of his [middle brother] that they remain supportive of him.”

Mr Watson-Munro opined that there was a nexus between the applicant’s childhood neglect by his parents and his mental health issues, which in turn led to his drug and alcohol abuse:

“It is apparent that the emotional and physical neglect that [the applicant] experienced during his formative years, in conjunction with the substantial dislocation to his life arising from each of his parents’ inability to adequately care for him, established the platform for [the applicant’s] longstanding symptoms of depression, anxiety and low self-esteem, leading into him self-medicating with illicit drugs and alcohol from an early age.”

According to Mr Watson-Munro, the applicant’s mental health was further compromised by setbacks in his early adulthood, ultimately leading to this offence:

“[The applicant’s] clinical picture has been further affected by other events in his adult life, including a serious motor vehicle accident resulting in spinal fractures and attendant to this chronic pain. Most recently, [the applicant] was exposed to a traumatic home invasion at Suffolk Park, leading to additional symptoms referable to flashbacks, nightmares, hypervigilance to danger, a loss of trust in others, anticipatory anxiety and further depression, which was additionally impacted by the breakdown of a relationship and his partner at the time terminating the pregnancy.
… He was actively involved in caring for his mother during the terminal phase of her illness, which included taking her to chemo and radiotherapy appointments. He concedes that during this period he was at times suicidal in his ideation. In the absence of treatment, he drifted into a pattern of illicit drug use, with this escalating in the context of the home invasion and attendant to this the breakdown of a relationship with his partner. He acknowledged that he has been self-medicating to block out the intensity of his symptoms referable to his psychological state. [The applicant] acknowledged that his drug use impacted upon his judgment referable to consequential thinking and impulse control. He reported that he essentially was supplying drugs in order to support his own addiction, with him stating in addition, that he was effectively homeless for a time, in the context of him being evicted from the house he was renting at Suffolk Park at the time of the home invasion.”

Mr Watson-Munro recommended treatment for the applicant, involving:

“… a Cognitive Behaviour Therapy (CBT) model, focussed on the further development of relapse prevention strategies, social skills training, systematic desensitisation for his anxiety, in addition to supportive and motivational psychotherapy.”

He noted that the applicant expressed a strong desire to receive treatment and get his life back on track:

“At examination he expressed a strong motivation for treatment, demonstrating some insight to the dynamics surrounding his offending behaviour. He stated that in addition he hopes to re-join the workforce. He has a brother who lives in the Byron Bay district who has offered him accommodation and certainly this, in conjunction with treatment and employment, will serve as protective factors in terms of his ongoing recovery and rehabilitation. [The applicant] recognised that he would benefit from one-to-one psychotherapy as well.”

A summary of prison lockdown records

These were prepared by the applicant’s solicitor, based on subpoenaed records of lockdowns in the prison where the applicant had been held on remand. While there were some discrepancies, the sentencing judge accepted that they demonstrated that over the period of the applicant’s remand until 16 March 2022, he had been in lockdown for a total of about 2,000 daylight hours.

The sentence hearing

Crown submissions on sentence

The Crown submitted in writing that the applicant’s motive was for a financial or material reward and that he could be properly described as “a high-level street dealer” since he on-sold substantial quantities which could have been used for further on-sale by the purchaser. The offence fell in the mid-range of seriousness.
The Crown accepted that the applicant had “a history of underlying mental health issues and that he has faced a number of challenges throughout his life”. The Crown continued:

“However, the Crown notes that the material provided by [the applicant] is untested, based largely on self serving statements to third parties and does not give rise to any formal diagnosis or medical opinions.
Accordingly, the Crown submits that the weight afforded to these materials should be limited: Imbornone v R [2017] NSWCCA 144 at [57].”

The Crown submitted that the applicant’s sentence material:

“… does not significantly evidence [the applicant’s] remorse. Rather, [the applicant’s] focus appears to centre around the impact of his drug addiction on himself, his work and his family.”

Accordingly, the Crown submitted, the applicant should be denied the mitigatory effect of a finding that he had adequately accepted and acknowledged the harm of his offending behaviour that is otherwise available pursuant to s 21A(3)(i) of the Sentencing Procedure Act.
The Crown submitted that the applicant’s criminal record denied him leniency and noted that he was subject to a CCO at the time of the commission of the offence. It submitted that his prospects of rehabilitation could not be described as “good”. The Crown underscored “the strong need for general deterrence in cases involving prohibited drug supply”.
The Crown conceded that, in light of the applicant’s history of substance abuse and mental health issues, it would not be heard against a finding of special circumstances to assist his rehabilitation by a longer period on parole.
At the sentence hearing, the Crown indicated that it did not require Mr Watson-Munro for cross-examination. Madam Crown withdrew the submission that the applicant was not genuinely and appropriately remorseful for his offending behaviour.

Submissions by the defence on sentence

In written submissions, the defence noted that the applicant had a relatively minor prior criminal record and that he had not previously received a sentence of imprisonment. It referred to the traumas and neglect of his childhood consequent to his heroin-addicted parents and noted that he had been drug-free in prison. His role was that of “a go-between or courier” and his involvement other than through the UCO was “limited to street level deals in the range 1 to 3 grams … motivated very much by his own addiction”.

While a prison sentence was inevitable, leniency was warranted by the applicant’s reduced moral culpability and prospects for rehabilitation and “a substantial period on parole” was appropriate to facilitate his continuing rehabilitation.
Under the heading “objective seriousness”, the defence submitted that the applicant was targeted by police in order to identify his upstream supplier, which occurred with the ultimate identification of the co-offender and Mr MacDonald.
As to subjective matters, the applicant referred to his personal and family history as being relevant to the sentencing exercise in multiple ways, most significantly in the sense contemplated in the principles enunciated in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [43] and [44].
The applicant was experiencing a loss of visits and “protracted COVID lockdowns” which had not assisted his depressive and anxiety disorders which weighed “more onerously on him in the sense contemplated by CDPP v De La Rosa [2010] NSWCCA 194 at [177]”.
In oral submissions, counsel for the defence acknowledged that the applicant’s motive for the offences was for profit, but only in the sense that he was paying off a drug debt and the opportunity to “scrape off” some cocaine to feed his own addiction. He submitted that the offence was “below mid-range” on the basis that the applicant was essentially a low-level street level dealer who had been encouraged by the UCO to supply larger quantities.
Although the applicant had committed the offences while on conditional liberty, his criminal record was comprised of relatively minor matters that had not attracted a sentence of imprisonment and, unlike many offenders with a history of prohibited drug addiction, the applicant had not resorted to property or personal violence offences to support his addiction. As to his prospects for rehabilitation, he had a demonstrated capacity for hard work and was keen to return to the work force.

The sentence judgment

The sentence was delivered ex tempore on the same day as the sentence hearing. The sentencing judge acknowledged the applicant’s legislative entitlement to a discount of 25 per cent for his early plea of guilty and that the Form 1 matters would be taken into account. His Honour summarised the agreed facts and set a framework for determining the objective seriousness of the offence:

“When assessing the objective seriousness of the offending here, one looks at the amount of the drug involved, the number of occasions on which the drug was supplied, the period over which the drug was supplied, the amount of money that was involved in the supply, the purity of the drug that was supplied, and the role of the offender, and on some of the authorities, the motivation of the offender is relevant as well to objective seriousness.”

His Honour referred to the defence material, accepting the passage from Frank’s affidavit quoted at [35] above, that the applicant was motivated to engage in supply to repay a large drug debt and feed his addiction:

“It is apparent from [Frank’s affidavit], which was not the subject of cross-examination or challenge, that in 2020 [the applicant] had run up a large drug debt. As a consequence of that, amongst other things, he was the subject of a home invasion, but being in debt obviously to those who had supplied him, he started to deal drugs to pay off some of the debt.”

His Honour accepted that prior to the involvement of the UCO, the applicant was supplying drugs at a significantly lower level:

“It is apparent that [the applicant] was conducting his own small street level operation, which may in part have involved him obtaining drugs for his own benefit … So he was, prior to the involvement with the undercover agent, selling comparatively small amounts involving 1 gram at a time and at the most 3 grams to support his habit …
But apart from what there can be described, accurately in my view as street level dealing, he was engaged in supplying this undercover agent large amounts of cocaine, very much it seems to be on order. He had no difficulty it seems sourcing the cocaine. He had an upline supplier who was also identified. He was clearly trusted by his upline suppliers who at one stage was referred to as the boss, to handle substantial quantities of cash and drugs. Labels such as courier, go-between, middleman and the like are usually unhelpful in assessing what actually has occurred in a particular case, and [counsel for the applicant] accepted the limitations of that kind of nomenclature in the circumstances of this particular case.”

His Honour continued:

“In my view, having regard to all the matters I have referred to, including the fact that this was activity that was designed to accrue to [the applicant] a financial benefit, namely … paying off a drug debt, his offending on this occasion should be assessed as mid-range.”

His Honour found that the applicant’s criminal record, although “relatively modest”, disentitled him to leniency because he was on conditional liberty at the time due to the CCO for an offence of possessing a prohibited drug, which was imposed on one of the dates that he supplied cocaine to the UCO.
The sentencing judge referred briefly to the account of the applicant’s background that emerged from the psychologist’s report and the affidavits of his brother and Ms Jervis. His Honour found:

“The only conclusion that one could come to in the circumstances of this history, which is not disputed, is that [the applicant] has been the subject of what is sometimes described as profound childhood deprivation. Nonetheless, [the applicant] has managed, at least for long periods of time in his life, to rise above that seriously disadvantaged background.”

His Honour referred to prosocial aspects of the applicant’s personal history; his work and relationship history, the care he provided for his terminally ill mother and his struggles with chronic pain. The sentencing judge noted that in 2018, following the break-up of the applicant’s relationship, he resorted to drug use but was assisted out of that situation by his brothers, who set him up in a business. However, when a new relationship collapsed in 2020:

“… regrettably [the applicant’s] response again to the breakup of a relationship was to get involved in heavy drug use, and therein begins the tale that we are now familiar with by virtue of reference to his criminal history and to the facts in this particular case.”

His Honour accepted that the applicant was remorseful for his conduct:

“His remorse is evidenced by his motivation to change, his desire for treatment, and his appreciation of the impact of his offending behaviour on the community, in addition to that of his family.”

His Honour referred to the diagnosis by Mr Watson-Munro of the applicant’s “unremitting symptoms of depression, anxiety and low self-esteem dating back to his formative pre-adolescent years” and said he understood that it was not submitted that they:

“… engage the principles in De La Rosa v R.^[2] I infer that I am to take them into account as part of the background circumstances, but also as being part of his emotional setting which has led him to self-medicate with drugs.”
2. Clearly a reference by his Honour to DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 per McClellan CJ at CL at [177], [178].

His Honour quoted the passage from Mr Watson-Munro’s report that is extracted above at [45], referred to traumatic events in the applicant’s life and then set a framework of relevant sentencing principles:

“The relevant sentencing principles that are engaged in this case are those that relate to the sentencing in relation to drug matters, the sentencing in relation to persons who come from a childhood background of profound disadvantage, the sentencing principles in relation to drug addiction, as well of course as general considerations relating to rehabilitation and the matters that are peculiar to [the applicant] as a result of the COVID-19 pandemic.”

As to sentencing for drug matters, his Honour referred to Parente v R [2017] NSWCCA 284 at [109], that “a consistent message of deterrence from sentencing judges is necessary” and at [110], that “protection of the community will usually be of significance”.
As to the relevant principles for sentencing persons who come from a profoundly deprived background, his Honour quoted Bugmy at pars [43] and [44] of the plurality’s judgment:

“43 … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
44 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.” (footnotes omitted)

His Honour underscored the presence of the word “may” in those paragraphs:

“… the presence of a particular fact in sentencing, including factors such as a profound childhood deprivation, do not automatically lead to a particular conclusion any more than the presence of a mental illness on the part of an offender will lead automatically to any particular conclusion, and particularly in relation to the moral culpability of the offender for the offending at hand.”

As to sentencing principles concerning addiction, his Honour referenced the judgment in R vHenry (1999) 46 NSWLR 346; [1999] NSWCCA 111 of Wood CJ at CL at [215]–[274], particularly [273(c)]. At [273], the Chief Judge condensed the relevant principles as to how drug dependency should be approached in the sentencing exercise for the offence of armed robbery:

“In my view the relevant principles are as follows:
(a)   the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;
(b)   however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
(i)   the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported);
(ii)   the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;
(iii)   the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

(c)   it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:
(i)   impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported);
(ii)   suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf R v Hodge (Court of Criminal Appeal, 2 November 1993, unreported) and R v Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;
(iii)   justify special consideration in the case of offenders judged to be at the ‘cross roads’: R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394.”

In apparent reference to [273(c)(ii)] of Henry, his Honour said:

“The relevant addiction that I am dealing with here is [the applicant’s] cocaine addiction. It did not commence at a time when [the applicant] was of a very young age.
By reference to the bench book at para 10485 one can see that what is contemplated by a very young age is someone around the age of nine or ten or 11, not necessarily of teenage years. I do not consider that [the applicant’s] intellectual capacity or mental capacity was so impaired by his upbringing that his ability to exercise appropriate judgment or choice was incomplete.”

His Honour went on to state that free choice and personal responsibility for one’s addiction applies, even where the explanation for it is self-medication, citing R v SY [2003] NSWCCA 291 per Whealy J at [62], in which his Honour said that the “taking of drugs in an addictive fashion is almost always likely to involve self-medication but that cannot of itself be a mitigating factor”. Similarly, the sentencing judge quoted from Bichar v R [2006] NSWCCA 1 at [23] where Howie J observed that “the fact that some traumatic or injurious event results in a person using drugs does not mean that drug addiction is a matter of mitigation”.
His Honour then made the following findings of fact in respect of the applicant’s background:

“… [the applicant’s] background in my view has not impacted upon his capacity to appreciate the wrongness of the behaviour that he engaged in, in this particular case. The behaviour he engaged in, in this particular case, was not impulsive, it was planned, it was deliberate, it was carried out over a three-month period. What his background has done, in my view, is create an emotional landscape that he has sought to deal with in a way that is not socially acceptable, as far as the law is concerned.
Even if I conclude that there is no substantial reduction in [the applicant’s] moral culpability for these offences because of his background (and that is my conclusion) it is still nonetheless appropriate to take [the applicant’s] background into consideration as part of the material relevant to the instinctive synthesis in which I have engaged in, and which leads to the ultimate sentence in this case … As Simpson JA in Millwood v R [2012] NSWCCA 2 at para 67 makes clear, the background of the offender is always relevant to sentencing, irrespective of the extent to which it affords mitigation in the particular case.
Nonetheless the fact remains that in balancing the circumstances of [the applicant’s] upbringing with the seriousness of his offending in this case, much less weight can be attributed to the former considerations than the latter.
To put it simply, at the point in time when [the applicant’s] relationship collapsed in 2020 … [the applicant] had a choice. He did not have to embark upon the extensive use of crack cocaine. There were other means by which he could deal with his emotional distress, including counselling. He has to be held accountable for the choice that he made.”

His Honour then turned to the applicant’s prospects for rehabilitation, noting his determination, positive history of employment and his family support. His Honour declined to make a positive finding as to his prospects for rehabilitation in view of his history of resorting to drug use “when things become emotionally difficult for him”.
His Honour found special circumstances on two bases: first, because it would assist his rehabilitation; and second, because of the punitive effect and loss of opportunity to access medical treatment due to the 2,000 hours of lockdown he had experienced up to March 2022, which his Honour calculated to be half of all daylight hours over that period of his remand.
His Honour had regard to the purposes of punishment that are set out in s 3A of the Sentencing Procedure Act. In relation to general deterrence, his Honour gave a particularly regional focus:

“In this particular case I am able to use my local knowledge as a sentencing judge which satisfies me that the use or misuse of cocaine in the Northern Rivers area, particularly the Byron Bay area and associated areas is problematic, and in my view the message of general deterrence is one which needs to be broadcast to the community in the Northern Rivers in such a way that they understand that people who deal in drugs in these quantities will receive an appropriate level of punishment.”

As noted, the sentence imposed by his Honour was an overall sentence of 6 years imprisonment, to commence on 22 April 2021, which was when he entered into custody, with a non-parole period of 3 years and 6 months. The non-parole period was thus 71 per cent of the overall sentence. The applicant’s earliest release date is 21 October 2024.

The application for leave

Ground 1

His Honour erred with respect to the assessment of objective seriousness, including in particular by finding it to be in the midrange because the offending was “designed to accrue a financial benefit”

The applicant’s submissions

The applicant submitted that, although the sentencing judge accepted that his motive for the offence was, in part, to pay off a drug debt, in the passage extracted at [67] above, that was equated with “accruing a financial benefit”, thus contributing towards his Honour’s finding of a mid-range objective seriousness. It was submitted that, although a motive of repaying a drug debt is not mitigatory, this characterisation was a material error in circumstances in which it was relied upon as a basis for determining that the offence was mid-range in objective seriousness.
The applicant relied upon Cicciarello v R [2009] NSWCCA 272 as a statement of principle, coincidentally arising from similar factual circumstances. In that case, an appeal against sentence was heard for the same offence, namely, supplying a commercial quantity of a prohibited drug (390.31g of ice), constituted by a UCO soliciting multiple supplies from the offender. At first instance, the sentencing judge accepted evidence by the offender to the effect that all of his sale proceeds were used to support his drug habit. His Honour found that the offence involved a series of criminal acts which were committed for financial gain and that the offence fell into the mid-range of objective seriousness. On appeal, the Court (Allsop P, Fullerton and McCallum JJ) said:

“16 Notwithstanding the material that was before him which he apparently accepted the learned sentencing judge assessed the seriousness of the offence as within the mid-range of objective seriousness taking into account that the crime was committed for ‘financial gain’.
17 Whilst one should be careful about generalising in relation to such factors outside the circumstances of any particular case, here, quite clearly, when one understands the background of this young man and what he was doing, he was not selling for greed or for financial gain, he was selling to feed a drug habit that he had acquired. This does not detract from the fact that he committed a serious offence, but what it does mean is that it was an error, and an important one, to characterise this as selling for financial gain and thus to characterise it as an offence falling within the mid-range. In our view, that latter conclusion must clearly have been affected by the finding of financial gain because no other basis in the facts could found such a conclusion.

18 In our view, there was an error of the sentencing judge in this regard. This error led to his Honour characterising the objective criminality of the offence as more serious than it was. It was not within the mid-range of objective seriousness. It was lower than that, in particular given that it was to feed his habit. A less severe sentence was warranted in law: the Criminal Appeal Act 1912 (NSW), s 6(3). For this reason the sentence on the first charge should be quashed.”

The applicant further submitted that the objective seriousness was diminished by the sentencing judge’s finding that the applicant was a small street-level dealer absent the supplies to the UCO, which were not disseminated to the public. All of these matters had been squarely raised by the applicant in written and oral submissions and accepted by the sentencing judge.

The respondent’s submissions

The respondent noted that the assessment of objective seriousness is a discretionary exercise, such that an asserted error is reviewable only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499 (House v The King) at 505; see Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37] and Simpson J, as her Honour then was, at [46]. Reference was made to authority to the effect that it is unnecessary for a sentencing court to fix objective seriousness on a scale, citing McDowall v R [2019] NSWCCA 29 at [35]-[36] (see also DH v R [2022] NSWCCA 200 at [33] and [60]).
The respondent acknowledged the proposition that, in determining objective seriousness, a motivation of financial gain, which may be an exacerbatory factor, is not to be equated with obtaining funds to pay off a drug debt or feed a drug habit. The respondent submitted that the sentencing judge identified the factors taken into account in determining the objective seriousness of the offence, including the applicant’s personal addiction to drugs, the origin of that drug use, the fact of his drug debt and a clear increase in supply volume that the offending represented, as well as his demonstrated capacity to source large quantities of drugs and handle large amounts of money, and the trust the upline suppliers held him in. The sentencing judge, thus, fairly and comprehensively considered the issues relevant to the objective seriousness of the offending and no error is disclosed in the exercise of the discretion.

Determination

Engaging in a drug offence, such as supply or importation, in order to repay a drug debt or to finance a drug addiction is not mitigatory of the offence’s objective seriousness. However, doing so for financial reward, either exclusively or beyond what is required to repay a drug debt, may increase the objective gravity of the offending: De La Rosa at [261]. See also Quayle v R [2010] NSWCCA 16 per R A Hulme J (Grove and Simpson JJ agreeing) at [53].
To the extent that engaging in such offending behaviour to repay a drug debt or finance a drug addiction may be construed as a form of seeking financial gain, as the sentencing judge did, it is the purpose of that financial gain that determines its relevance in the sentencing exercise. In Hejazi v R [2009] NSWCCA 282, Basten JA (Howie and Hislop JJ agreeing) said, at [12], referring to Cicciarello at [17]:

“This statement must be read in its context. It does not purport to say that an offence committed for financial gain may not involve an element of aggravation, as indeed s 21A of the Sentencing Procedure Act states. What it does assert is that selling to feed a drug addiction is a factor which does not increase the moral culpability of the offence in the way that it might be increased if financial gain were not otherwise so excused. Nor does it suggest that the fact that the purpose of the offence was to obtain funds to feed a drug habit in any way diminishes the objective seriousness of the offence.”

In the passage extracted at [64] above, the sentencing judge was cognisant of the potential relevance “on some of the authorities” of motive in fixing the objective seriousness of the offence. His Honour identified the applicant’s motive as “to accrue … a financial benefit, namely … paying off a drug debt”. His Honour did not, in terms, identify it as an aggravating factor, but in view of the sentencing judge’s finding that, absent his involvement with the UCO, the applicant was “selling comparatively small amounts involving 1 gram at a time and at the most 3 grams to support his habit”, it is not apparent how else the offence could attract a finding of mid-range seriousness.
I am satisfied by the manner and context of the reference to “financial gain” that his Honour treated it as the applicant’s primary motive and a significant factor in fixing the objective seriousness of the offence, whereas the reasons for the financial gain, to pay off a drug debt to those who had carried out the home invasion and to skim drugs for his addiction, was of little consequence in that exercise. In my view, his Honour fell into error in placing little or no weight on the applicant’s motive for engaging in the offence in determining its objective seriousness.
Accordingly, I would uphold this ground.

Ground 2

His Honour erred with respect to the applicant’s subjective case, including by:

a. finding the applicant’s background did not reduce his moral culpability;

b. failing to correctly apply the principles in Bugmy v The Queen (2013) 249 CLR 571 and Henry v R (1999) 46 NSWLR 346; and

c. otherwise failing to afford the applicant’s subjective case requisite weight

Ground 3

The sentence was manifestly excessive

The applicant addressed grounds 2 and 3 together.

The applicant’s submissions

The applicant submitted that the sentencing judge erred in having a “siloed” approach in finding that the applicant’s profound childhood deprivation did not warrant a reduction in his moral responsibility. In particular, his Honour erred in divorcing his consideration of the evidence of the applicant’s drug abuse, which his Honour found to be the immediate causal factor in the commission of the offence, from his mental illness and his childhood neglect. It was submitted that his Honour should have found that the applicant’s background of profound childhood deprivation reduced his moral culpability by contributing to his mental health issues and his addiction to prohibited drugs, and thus ultimately to his offending behaviour.
It was submitted that the sentencing judge’s understanding of what Wood CJ at CL meant by the term “a very young age” in Henry, that is, “someone around the age of nine or ten or 11, not necessarily of teenage years” (in the passage extracted at [78] above), is without foundation. The applicant referred to the judgment of Simpson J (as her Honour then was) in Henry at [336] to [341], which also dealt with the relevance of an offender’s background to their drug addiction in the sentencing exercise, submitting that:

“There is no principle, divorced from the facts of a case, which holds that substance abuse commenced in middle-adolescence precludes the application of the principles set out by Simpson J in Henry, or those in Bugmy (nor is this suggested in the Bench Book).”

Alternatively, the applicant submitted that, pursuant to ground 3, the sentencing judge failed to give adequate weight to these aspects of the applicant’s subjective case. Although the sentencing judge stated that the applicant’s background would be taken into consideration “as part of the material relevant to the instinctive synthesis”, it is evident that the sentencing judge failed to give “even the minimum necessary weight” to the relevant Bugmy factors, so that the resulting sentence was manifestly excessive: Hoskins v R [2021] NSWCCA 169 at [79] per Beech-Jones J (as his Honour then was).
Further to ground 3, the applicant referred to comparative sentences for the same offence in which a lesser sentence was imposed despite the objective circumstances being arguably more serious and the subjective features being less compelling, none of which involved Bugmy factors.

The respondent’s submissions

The respondent submitted that ground 2 concerned an attribution of weight in the sentencing exercise, thus requiring a demonstration of error in the House v The King sense, which was not disclosed. The sentencing judge noted the planned nature of the offence rather than it being impulsive, and weighed the applicant’s unfortunate background against the seriousness of the offence, attributing “much less weight” to the latter, which his Honour was entitled to do.
The respondent referred to decisions of this Court in which the Bugmy principles had been held to not apply to the sentencing exercise for the offence of drug supply, because it was not an impulsive offence. In Taysavang v R; Lee v R [2017] NSWCCA 146, Simpson JA (as her Honour then was), McCallum and Fagan JJ agreeing, said, at [42]:

“It was sought to extend this principle so as to impute a reduction in moral culpability for the offence of drug supply which is under consideration here. As her Honour found, the offence involved planning and organisation rather than impulsivity. There was nothing in the evidence to suggest that frustration on the part of Mr Taysavang gave rise to unconsidered action on his part. It was not an offence of a kind that could sensibly be regarded as flowing from dysfunctional tendencies subconsciously absorbed from experience within the offender’s family in early childhood.”

In any event, the sentencing judge expressly took the evidence of the applicant’s childhood neglect into account in the passage extracted at [80] above. The respondent submitted that the sentencing judge did not fall into any error of principle in the way he approached that evidence. The weight given to that evidence, and to sentencing principle generally, was a matter for the sentencing court.
As to ground 3, the respondent submitted that the sentence imposed was not unreasonable or unjust or manifestly excessive having regard to the relevant circumstances, including the following: the maximum penalty (20 years) and standard non-parole period (10 years); the three Form 1 offences and their maximum penalty (15 years); the objective seriousness of the offence, which was properly found to be mid-range; and the need for denunciation.

Determination

His Honour’s reasoning as to the relevance of the applicant’s personal history was as follows. His Honour accepted the history, as recorded in the psychologist’s report and the affidavits of the applicant’s brother and the District Officer, as accurate and found that it constituted “profound childhood deprivation”. His Honour accepted that this deprivation in the applicant’s formative years caused what the psychologist diagnosed as longstanding symptoms of depression, anxiety and low self-esteem which, in turn, led to him “self-medicating” with prohibited drugs and alcohol from an early age.
The sentencing judge found that, at various times in his life, the applicant had managed “to rise above that seriously disadvantaged background” and other misfortunes, including the head injury when he was aged 3, the 2006 car accident when aged 18 and subsequent chronic back pain, and the experience of caring for his terminally ill mother for two years from when he was aged about 20.
The evidence that the applicant overcame these setbacks was that he “managed to finish high school” (although I note that he finished high school in 2004, when he would have just turned 16, suggesting that he left at Year 10), and found and held employment from time to time, including that “he worked hard and was doing well” when his brothers set him up in the lawn-mowing business.
The sentencing judge attached some significance to a finding he made, in the passage extracted at [80] above, that the applicant’s background: “has not impacted upon his capacity to appreciate the wrongness of the behaviour that he engaged in … [and] was not impulsive, it was planned, it was deliberate, it was carried out over a three-month period”. The sentencing judge’s reasoning culminated in a conclusion that the applicant’s background did not warrant a reduction in his moral culpability because:

“What his background has done, in my view, is create an emotional landscape that he has sought to deal with in a way that is not socially acceptable, as far as the law is concerned.”

In other words, the strides made by the applicant in overcoming his adversities, although sporadic, had been sufficiently successful to break any causative relationship, if there ever had been, between the damage done to his moral compass by the neglect he experienced in his childhood and his offending behaviour. In any event, his drug use, which was the immediate context of him supplying drugs (to repay a drug debt and skim drugs for his own use), commenced in his mid-teens and did not involve cocaine.
His Honour’s reasoning assumes that a reduction of the moral culpability of an offender due to their profound childhood deprivation is precluded if their offence is committed with significant planning beforehand, rather than it being an impulsive act, and they knew it to be wrong and, prior to the offence, they had demonstrated a capacity to live a pro-social life.
An offender who planned the offence for which they are being sentenced, when that factor is considered with all the relevant evidence, may not receive a reduction of the offender’s moral culpability; see for example Hoskins at [57], where Brereton JA (Basten JA and Beech-Jones J agreeing) stated that:

“… the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and premeditation is involved, such as cultivation and drug supply matters.” (emphasis added)

However, it is incorrect to state that an offender’s moral culpability cannot be reduced pursuant to an application of the Bugmy principles if the offence is pre-planned. In Taysavang, Fagan J at [42], Simpson JA and McCallum J (as their Honours then were) agreeing, considered factors that were relevant to the determination that the offender’s moral culpability could not be reduced:

“It was sought to extend this principle so as to impute a reduction in moral culpability for the offence of drug supply which is under consideration here. As her Honour found, the offence involved planning and organisation rather than impulsivity. There was nothing in the evidence to suggest that frustration on the part of Mr Taysavang gave rise to unconsidered action on his part. It was not an offence of a kind that could sensibly be regarded as flowing from dysfunctional tendencies subconsciously absorbed from experience within the offender’s family in early childhood.”

In Harris v R [2021] NSWCCA 322, Dhanji J at [82], Simpson AJA and I agreeing, considered that a determination by the sentencing judge to reduce the applicant’s moral culpability for an offence involving planning (armed robbery) was not inconsistent with Taysavang:

“In the present matter there was no issue that the applicant’s background was one of profound deprivation: cf Nasrallah v R [2021] NSWCCA 207; Hoskins v R [2007] NSWCCA 169. Further, there was no suggestion in this case that the offence involved the type of careful planning which may impact the application of Bugmy principles for the reasons discussed in Taysavang v R; Lee v R [2017] NSWCCA 146 at [42]–[43] . While the applicant’s actions may not have been the result of an instinctive reaction in the sense discussed in Bugmy (at [44]), the offence was clearly poorly planned, and, particularly given the applicant’s role largely involved him joining in with the co-offender, his decision to participate appears to have involved little in the way of deliberation. Consistently with these observations the sentencing judge found that the principles referred to in Bugmy, Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 and R v Fernando (1992) 76 A Crim R 58 applied and ‘serve to ameliorate the moral culpability’ of the applicant.”

Three recent examples from judgments of this Court that involved a reduction of the offender’s moral culpability in the context of an application of the Bugmy principles without criticism, where the offence was of a type that involved a degree of pre-planning, are: Chiarlini v R [2023] NSWCCA 227 at [21] and [37] (supplying a large commercial quantity of methylamphetamine); Baines v R [2023] NSWCCA 302 at [71]–[76] (a planned gangland execution); and Harris v R [2023] NSWCCA 174 at [79] and [84] (armed robbery).
As to whether an offender’s awareness that the offence is wrong and their earlier positive achievements are pivotal considerations, in my view, the observations by the plurality in Bugmy at [43] and [44] that profound childhood deprivation “may compromise the person’s capacity to mature and to learn from experience”, that the effects “do not diminish with the passage of time” and apply “notwithstanding that the person has a long history of offending”, acknowledge that its impact on an offender’s moral compass may be embedded and is not necessarily, or easily, responsive to a change in circumstances for the better. In the case of Chiarlini, the applicant was of prior good character, having finished high school, studied accounting and law at university and worked in accounts departments and as a law clerk, before committing the offence.
The sentencing judge cited the judgment of Wood CJ at CL in Henry at [273(c)(ii)] in which his Honour referred to a diminution of personal responsibility for an addiction if it occurred at “a very young age”. As noted in the passage extracted at [78], the sentencing judge determined that the Chief Judge meant “someone around the age of nine or ten or 11, not necessarily of teenage years”. I note that the respondent concedes that “the applicant’s drug use is accepted to have initially commenced at a relatively young age” and has not referred to authority for the proposition advanced by the sentencing judge.
It follows that the sentencing judge applied incorrect principles when determining whether the applicant’s moral culpability could be reduced, pursuant to an application of the Bugmy principles, thus establishing error in the sense of House v R.
Accordingly, ground 2 is made out.
Error having been established in grounds 1 and 2, it will be necessary to re-sentence the applicant, unless no different sentence should be passed: Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35], [42] per French CJ, Hayne, Bell and Keane JJ. The successful challenges against the sentencing judge’s findings as to the objective seriousness of the offence and the applicant’s level of moral culpability warrant a lesser sentence.
In those circumstances, it is unnecessary to consider grounds 3 and 4. In the resentencing exercise, I will have regard to the sentence that was passed on the applicant’s co-offender.

Resentence

On resentence, the applicant reads an affidavit by him filed on 19 September 2023, which attests to his progress though the prison classification system to a point of him having been on a work release program in the community since August 2023. He has completed training programs through TAFE in various vocational areas, including welding and fabrication. He has maintained a close relationship with his brothers via audio visual communications (AVL) and through occasional excursions with them into a nearby town. He continues to suffer from back pain and depression, for which he is receiving drug therapy. Regrettably, he has been told that he did not qualify for treatment programs related to his offence, so he remains without the benefit of a drug rehabilitation program.
As to the objective seriousness of the offence, I note the maximum penalty and the standard non-parole period, which indicates the seriousness with which parliament regards such offences. The quantity of cocaine involved is twice the commercial quantity and is approximately at the mid-point between a commercial and large commercial quantity, which is 1kg. I note that the offence is a rolled-up charge of nine separate supplies on eight different dates in a three-month period. I take into account the three Form 1 offences.

I find that the applicant’s motive for the offence was to repay a drug debt, for which he had recently suffered a home invasion and an assault, and to feed his drug addiction to cocaine, by him skimming some of the drugs he supplied to others. Of particular significance is the fact that, absent the involvement of the UCO, the applicant was a street supplier of between 1g and 3g of cocaine. As noted in authorities cited at [88] above, it is unnecessary to fix the objective seriousness of the offence on a scale and I decline to do so.
The applicant’s moral culpability is significantly reduced, by reason of two factors, which to some extent overlap. I find that there is a nexus between the nature of the offence and Form 1 offences and the profound childhood deprivation that he suffered as a child. When aged 8 years old, the applicant was caught supplying cannabis in primary school at his father’s behest, which grimly resonates with the nature of the offence for which he is being re-sentenced. He is the victim of shocking neglect by both parents, who were heroin addicts throughout his childhood and ensconced him in their criminal activities to feed their addictions. His two older siblings were not as exposed as he was to their parents’ downward spiral, leaving home as soon as they were able, and then doing their best as adults to help the applicant. I accept that the applicant’s resistance to resorting to the supply of prohibited drugs to feed his drug habit and pay his drug debt was substantially weakened by the drug-related criminal environment in which his parents raised him, despite his past determined efforts to move on from that childhood experience, with his brothers’ assistance.
The applicant’s moral culpability is also reduced, although modestly, by his mental health diagnoses, in particular, his depression and anxiety, which contributed to his decision to engage in the offending behaviour. I note the evidence that the applicant’s diagnosed depression has made his conditions of incarceration more onerous, which I take into account: De La Rosa at [177].
I find that the applicant is genuinely remorseful for committing the offence and that his prospects of rehabilitation are reasonable; and that the applicant’s progress in the prison system is encouraging.
I note that the applicant’s co-offender, who was engaged in the same enterprise, was sentenced by a different judge (Hunt DCJ) on 16 November 2023 for the offence of taking part in the supply of a commercial quantity of cocaine, being 286g contrary to s 25(2) of the Act. That amount related to supplies made by the applicant on four dates in exchange for a total sum of $109,500. The sentencing judge found that his motive was financial gain and that he “laundered” $100,000 of the amount that he received from the applicant through a crypto currency account that he opened. The sentencing judge found that he was genuinely remorseful and that he had “excellent” prospects for rehabilitation. He received a 10 per cent discount for his plea of guilty from a starting point sentence of 30 months. His Honour took into account 9 months of pre-sentence actual and quasi-custody, and sentenced him to a period of 18 months’ imprisonment from the date of sentence, to be served by way of an ICO.
There are disparities in the facts of the offenders that tend towards a finding that the offence committed by the co-offender was objectively less serious and his subjective factors were more favourable, for example, although the co-offender was the upline supplier to the applicant, the quantity of cocaine he supplied was almost half that for which the applicant falls to be resentenced and he had high prospects for rehabilitation. In formulating the fresh sentence for the applicant, I take the co-offender’s sentence and the sentencing judge’s findings into account.
I have regard to the purposes of sentencing in s 3A of the Sentencing Procedure Act. I am mindful of the importance of general deterrence in sentencing offenders for offences involving the supply of prohibited drugs: Parente at [109]-[110]. However, the need for general deterrence is attenuated by the applicant’s diagnosed mental health issues which have contributed to the commission of the offence: DPP (Cth) v De La Rosa at [177]. I am satisfied that no sentence other than a sentence of imprisonment is appropriate: s 5(1) of the Sentencing Procedure Act.
I would reduce the otherwise appropriate sentence by 25 per cent for the applicant’s early plea of guilty.
I find special circumstances on the basis that the applicant will require a significant period of supervision, and ideally treatment, to address the criminogenic factors of his tendency to resort to the use of prohibited drugs under pressure and his related mental health issues. It is appropriate that the departure from the statutory ratio of the balance of term to the non-parole period be substantial, in view of the need for supervision (and ideally treatment) for the consequences of his ingrained childhood experiences on his mental health.
I would resentence the applicant to imprisonment for a period of 4 years and 6 months, backdated to commence on 22 April 2021, with a non-parole period of 2 years and 11 months. Accordingly, the applicant would become eligible for parole on 21 March 2024.

Orders

I propose the following orders:

Grant leave to appeal;
Allow the appeal on grounds 1 and 2;
Quash the sentence imposed on the applicant by Judge McLennan in the District Court on 24 May 2022;
In lieu thereof, resentence the applicant to a term of imprisonment for a period of 4 years and 6 months, backdated to commence on 22 April 2021 and to expire on 21 October 2025, with a non-parole period of 2 years and 11 months, to expire on 21 March 2024.

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Endnotes

Decision last updated: 28 February 2024

Medium Neutral Citation:	Robertson v R [2024] NSWCCA 22
Hearing dates:	6 December 2023
Decision date:	28 February 2024
Before:	Harrison CJ at CL at [1]; Wilson J at [2]; Ierace J at [3]
Decision:	(1) Grant leave to appeal; (2) Allow the appeal on grounds 1 and 2; (3) Quash the sentence imposed on the applicant by Judge McLennan in the District Court on 24 May 2022; (4) In lieu thereof, resentence the applicant to a term of imprisonment for a period of 4 years and 6 months, backdated to commence on 22 April 2021 and to expire on 21 October 2025, with a non-parole period of 2 years and 11 months, to expire on 21 March 2024.
Catchwords:	CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Supply of not less than commercial quantity of drug — Where applicant supplied significantly lower quantities of drugs prior to the involvement of police undercover operative — Whether sentencing judge erred in assessing the objective seriousness of the offence on the basis that it was designed to accrue a financial benefit CRIME — Appeals — Appeal against sentence — Where sentencing judge took account of the applicant’s background of profound childhood deprivation as part of instinctive synthesis but refused to reduce the applicant’s moral culpability — Whether the sentencing judge failed to correctly apply the principles of Bugmy v The Queen (2013) 249 CLR 571
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 25D(2)(a), 32, 33 Drug (Misuse and Trafficking) Act 1985 (NSW) ss 10(1), 25(1),(2), 32(1)(c),(g)
Cases Cited:	Baines v R [2023] NSWCCA 302 Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 CDPP v De La Rosa [2010] NSWCCA 194 Chiarlini v R [2023] NSWCCA 227 Cicciarello v R [2009] NSWCCA 272 Harris v R [2023] NSWCCA 174 Hejazi v R [2009] NSWCCA 282 Hoskins v R [2021] NSWCCA 169 House v The King 55 CLR 499; [1936] HCA 40 Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37 Parente v R [2017] NSWCCA 284 Quayle v R [2010] NSWCCA 16 R vHenry (1999) 46 NSWLR 346; [1999] NSWCCA 111 Taysavang v R; Lee v R [2017] NSWCCA 146
Category:	Principal judgment
Parties:	Bodene Robertson (Applicant) Rex (Respondent)
Representation:	Counsel: J Roy (Applicant) J Styles (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2021/112608
Decision under appeal	Court or tribunal: District Court Date of Decision: 24 May 2022 Before: McLennan DCJ File Number(s): 2021/112608