Tsoumbanellis v The King

Case •

[2025] NSWCCA 107

•

25 July 2025

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Tsoumbanellis v R [2025] NSWCCA 107
Hearing dates: 18 June 2025
Date of orders: 25 July 2025
Decision date: 25 July 2025
Before: Garling J at [1]
Ierace J at [2]
Dhanji J at [3]
Decision:

(1)   Leave to appeal granted.

(2)   Appeal allowed.

(3)   The sentence imposed in the District Court on 10 December 2024 is quashed.

(4)   The applicant is sentenced to an aggregate term of imprisonment of 4 years, comprising a non-parole period of 2 years and 6 months with a balance of term of 18 months, commencing on 18 October 2023. The non-parole period will expire on 17 April 2026. The total term is due to expire on 17 October 2027.

Catchwords:

CRIME – appeals – appeal against sentence – supply not less than the commercial quantity of methylamphetamine – deal with proceeds of crime – Form 1 offences – allow premises to be used as drug premises – supply methylenedioxymethamphetamine – advanced age – whether failure to take into account utilitarian discount – whether error in including “the presence of children” as aggravating factor – whether failure to include remorse and age as mitigating factors – whether sentence manifestly excessive – s 25D(2)(a) Crimes (Sentencing Procedure) Act not applied – s 25F(7) Crimes (Sentencing Procedure) Act not complied with – failure to take into account applicant’s remorse – leave to appeal granted – appeal allowed – sentence quashed – resentence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1A, Div 3, ss 3A, 21A, 25A, 25D, 25F, 44, 53A, 54A, 101A

Crimes Act 1900 (NSW), s 193B

Criminal Appeal Act 1912 (NSW), s 5

Criminal Procedure Act 1986 (NSW), s 166

Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 36Y

District Court Rules 1973 (NSW), Pt 53, r 12

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Borri v R [2023] NSWCCA 166

Cullen v R [2014] NSWCCA 162

Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086

DS v R [2025] NSWCCA 53

Edwards v R [2017] NSWCCA 160

Forti v R [2016] NSWCCA 127

Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539

Huang v R [2017] NSWCCA 312

Kapila v R [2024] NSWCCA 48

Lee, Matthew v R [2016] NSWCCA 146

Liu v R [2023] NSWCCA 30; (2023) 306 A Crim R 105

McLaughlin v R [2013] NSWCCA 152

Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58

NH v Director of Public Prosecutions for the State of South Australia (2016) 260 CLR 546; [2016] HCA 33

R v DB [2001] NSWCCA 320

R v Hunter (1984) 36 SASR 101

R v Lapa (No 2) (1995) 80 A Crim R 398

R v Mammone [2006] NSWCCA 138

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Tuncbilek [2004] NSWCCA 139

Sampson v R [2025] NSWCCA 25

Tran v R [2020] NSWCCA 39

Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Woodward v R [2014] NSWCCA 205; (2014) 68 MVR 376

Category:Principal judgment
Parties: Dimitrios Tsoumbanellis (Applicant)
Rex (Respondent)
Representation:

Counsel:
S Kluss (Applicant)
A Isaacs (Respondent)

Solicitors:
Ross Hill and Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/00331348
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Citation:

R v Tsoumbanellis [2024] NSWDC 657

Date of Decision:
10 December 2024
Before:
Neilson DCJ
File Number(s):
2023/00331348

HEADNOTE

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

The applicant, after pleading guilty in the Local Court, was sentenced by Neilson DCJ with respect to one count of supply prohibited drug not less than the commercial quantity applicable to that drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (commercial supply offence) and one count of knowingly deal with the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW) (proceeds offence). Two further offences were taken into account on a Form 1. The applicant received an aggregate sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years, commencing on 18 October 2023.

The applicant sought leave to appeal against his sentence on four grounds. By ground 1, the applicant contended that the sentencing judge failed to apply a utilitarian discount for his plea of guilty. By ground 2, the applicant contended that the sentencing judge erred by including “the presence of children” as an aggravating factor. By ground 3, the applicant contended that the sentencing judge erred by failing to take into account the applicant’s remorse and age as mitigating factors. Ground 4 was a complaint of manifest excess.

At the hearing of the appeal, the applicant sought to expand ground 1 to incorporate a failure to comply with s 25F(7) of the Crimes Sentencing Procedure Act 1999 (NSW) (CSPA). The respondent did not oppose the applicant being granted leave to do so and leave was granted.

The Court held (Dhanji J, Garling and Ierace JJ agreeing) allowing the appeal, quashing the sentence imposed by the sentencing judge and resentencing the respondent:

As to ground 1:

  1. Despite the applicant’s entitlement to a mandatory discount, no reference was made to the application of any such discount by the sentencing judge in his reasons for imposing the sentence. While there were a number of circumstances suggesting the plea was taken into account, more difficult was the question of the quantum of the discount afforded. The Court was inclined to the view that the mandatory discount of 25 percent required by s 25D(2)(a) of the CSPA was not applied to the indicative sentences. In any event, s 25F(7) of the CSPA was not complied with (at [30]-[53]).

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, Borri v R [2023] NSWCCA 166, Tran v R [2020] NSWCCA 39, Lee, Matthew v R [2016] NSWCCA 146 and Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 considered, R v Lapa (No 2) (1995) 80 A Crim R 398, NH v Director of Public Prosecutions for the State of South Australia (2016) 260 CLR 546; [2016] HCA 33, Cullen v R [2014] NSWCCA 162 and Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 cited, Edwards v R [2017] NSWCCA 160 and Woodward v R [2014] NSWCCA 205; (2014) 68 MVR 376 distinguished.

As to ground 2:

  1. With respect to the commercial supply offence, there was no error in the sentencing judge’s finding that children were exposed to danger. The gravamen of offences involving prohibited drugs is the danger they pose to the community. There is a greater concern where the danger is posed to vulnerable members of the community such as children. The offences were ongoing with drugs located in common areas in the home in which the children lived. It was not necessary that the risk was realised before the sentencing judge could take this matter into account (at [54]-[56]).

McLaughlin v R [2013] NSWCCA 152 distinguished.

  1. For the same reasons as given with respect to the commercial supply offence, there was no error in the sentencing judge’s finding that the presence of children was “quite probably a relevant aggravating factor” to the Form 1 offence, and if not a statutory aggravating factor, it certainly increased the “culpability for that offence” (at [57]).

As to ground 3:

  1. Despite the formulation of the ground, there was no suggestion that the asserted errors were related and each was dealt with separately (at [59]).

  2. The sentencing judge did not make an explicit finding as to either the presence of remorse, or, if present, how it was taken into account. Further, the sentencing judge made no reference to the most salient part of the psychological report relating to the applicant’s remorse. This part of the ground was made out (at [61]-[64]).

  3. The sentencing judge did not expressly indicate how the applicant’s age was taken into account other than in finding special circumstances. However, there was no doubt that the sentencing judge was concerned by the applicant’s age, and the consequent prospect that he may have significant issues with his health. Given the importance given to the fact by the sentencing judge, the Court would not infer that its significance was overlooked insofar as it was also relevant to the head sentence. This part of the ground was not made out (at [66]-[71]).

Liu v R [2023] NSWCCA 30; (2023) 306 A Crim R 105, R v Mammone [2006] NSWCCA 138 and R v DB [2001] NSWCCA 320 considered, Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 and R v Hunter (1984) 36 SASR 101 cited.

As to resentencing:

  1. The Court regarded sequence 3 as falling somewhat below the mid-range of objective seriousness. The Court adopted the sentencing judge’s finding that the proceeds offence was “at the lower end of the range”. The Form 1 offences provided context in establishing the applicant was dealing in multiple drugs and required some, albeit slight, additional weight be given to retribution (at [74]-[79]).

Huang v R [2017] NSWCCA 312 cited.

  1. The indicative sentences were each reduced by 25 percent for the utilitarian value of the applicant’s pleas. The Court allowed substantial concurrency between the offences. The Court found special circumstances for the purposes of s 44(2B) of the CSPA, those circumstances being the applicant’s need for rehabilitation, his age and his underlying health conditions (at [87]-[90]).

Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 distinguished.

JUDGMENT

  1. GARLING J:   I agree with the orders proposed by Dhanji J and with the reasons which his Honour gives.

  2. IERACE J:   I also agree with the orders proposed by Dhanji J and with his Honour’s reasons.

  3. DHANJI J: The applicant, Dimitrios Tsoumbanellis, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed upon him in the District Court of New South Wales at Sydney on 10 December 2024 by his Honour Judge Neilson.

  4. Following his pleas of guilty in the Local Court, the applicant was sentenced with respect to the following offences:

Sequence 3: Knowingly take part in the supply of methylamphetamine, being an amount not less than the commercial quantity applicable to that drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) (commercial supply offence).

Sequence 5: Knowingly deal with the proceeds of crime, namely $24,950, contrary to s 193B(2) of the Crimes Act 1900 (NSW) (proceeds offence).

  1. An aggregate sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years, commencing on 18 October 2023 was imposed. The non-parole period will end on 17 October 2026 and the full term will expire on 17 April 2028.

  2. With respect to sequence 3, two further offences were taken into account on a Form 1 attached in accordance with Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA):

Sequence 4: Knowingly allow premises, namely Unit 309, 2-12 Smail Street, Ultimo, to be used as drug premises, contrary to s 36Y(1)(a) of the DMTA.

Sequence 6: Supply a prohibited drug, namely 3.18 grams of 3, 4-methylenedioxymethamphetamine (MDMA), contrary to s 25(1) of the DMTA.

  1. The maximum penalty applicable to sequence 3, the commercial supply offence, was a fine of $385,000 and/or imprisonment for 20 years. A standard non-parole period of 10 years is prescribed. The maximum penalty applicable to sequence 5, the proceeds offence, was 15 years imprisonment.

  2. The matters on the Form 1, had the applicant been convicted of those offences, would have carried maximum penalties of a fine of $5,500 and/or imprisonment for 12 months, and a fine of $220,000 and/or imprisonment for 15 years, respectively. The applicant was not, however, to be sentenced for those matters. They were to be taken into account, potentially leading to greater weight being given to specific deterrence and retribution and, potentially, in providing context when sentencing for the primary offence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]; Kapila v R [2024] NSWCCA 48.

  3. Indicative sentences for each of sequence 3 and sequence 5 were specified in accordance with s 53A(2)(b) of the CSPA. The indicative sentences nominated were, respectively, 4 years imprisonment with a non-parole period of 2 years and 6 months, and 2 years imprisonment with a non-parole period of 1 year and 6 months.

  4. As originally notified, the applicant sought to rely on the following four grounds of appeal:

“[1].   His Honour failed to apply a utilitarian discount.

[2]. His Honour erred in including ‘the presence of children’ as an aggravating factor in relation to the indicative sentences and the form one.

[3]. His Honour failed to take into account the remorse and age of the applicant as a mitigating factor on sentence.

[4]. His Honour imposed a sentence that was manifestly excessive and a different sentence is warranted at law.”

  1. Ground 1 was ultimately expanded, as discussed below. For the reasons set out below, I would grant leave to appeal and allow the appeal.

The Facts

  1. A statement of agreed facts signed by the applicant on 14 July 2024 was tendered during the sentencing proceedings. The sentencing judge summarised those facts as follows (at [6]-[8]):

“6   The first of the agreed facts is the one that has caused me the greatest concern. That fact records the [applicant]’s date of birth as being in October 1954. He has recently turned 70 years old. At the time of the offending the [applicant] was aged 68 years. In September 2023 police attached to the Sydney City Command began an investigation into the supply of prohibited drugs by the [applicant]. The [applicant] was living with his partner […] and two of her children at Unit 309/2-12 Smail Street Ultimo. At the time of the offending the two children of the [applicant]’s partner were aged eight years and five years. The lease of the unit in which the [applicant] was residing was held by both him and his partner.

7   At 12.26pm on 18 October 2023 after a search warrant and a digital access order had been granted, police conducted a search of the premises. They found on the premises a large number of items which are set out in a table in the agreed facts. They found a number of parcels of methylamphetamine. There was some loose in an exhibit bag. There were 18 resealable plastic bags containing methylamphetamine. There were four plastic bags containing 3,4 methylenedioxymethylamphetamine or ecstasy. The total amount of that drug was 3.18 grams.

8   In a briefcase under his bed the police found $24,950 in Australian banknotes. That is the subject of the second substantive charge. They found a Samsung mobile telephone on the living room coffee table, another mobile phone in shelf in the bedroom and a further two mobile phones found on the bed, I assume, of the couple. On a shelf in the bedroom they found a MacBook Air laptop and on the table on a balcony a small digital scale.”

  1. The total amount of methylamphetamine was 386.54 grams. The applicant admitted to police during the execution of the search warrant that he was “selling drugs”. On arrest, he participated in an electronically recorded interview, during which he made further admissions. The trial judge summarised those admissions as follows (at [10]-[13]):

“10   The resealable bags were located on the balcony and contained a crystal substance which was ice. The [applicant] had been given that substance by a supplier to sell. Once he sold it, the [applicant] would pay the supplier to him the money that he obtained from the sale. Six resealable bags containing a crystal substance located in the living room weighing 330 grams was ice which the [applicant] intended to supply. A small container containing a crystalline substance located in a kitchen cupboard next to the dishwasher was also ice and that ice was owned by the [applicant]. The [applicant] admitted that the multiple resealable bags located on the balcony table contained ice and belonged to him. The two small resealable plastic bags containing a crystalline substance located in the laundry the [applicant] admitted to be ice. The small digital scale located on the balcony was used by the [applicant] for weighing the bags of drugs.

11   The [applicant] admitted to selling drugs in amounts of either 2, 3 or 4 grams. The [applicant] also admitted that the black briefcase located under the bed contained cash between $20,000 and $25,000 that was money acquired from selling the drugs. The [applicant] admitted that he paid to the individual, who supplied him with the drugs, that money. He admitted that he was the only person who had access to that briefcase. The [applicant] said that he had last had access to the briefcase on 17 October that year, on the night prior to the execution of the search warrant when he put more money inside the briefcase. The [applicant] admitted that generally he puts money into the briefcase every second day.

12   He went on to admit that he received a supply of prohibited drugs every three months from the supplier to him. That three monthly supply was worth about $45,000 which he then sold during each three month period. The [applicant] admitted that he had most recently supplied illicit drugs on the weekend prior to the execution of the search warrant and his arrest. The [applicant] also admitted to the police that he knew that he was breaching the conditions of his parole. The [applicant] admitted that he himself was a drug user and was using approximately 1 gram of methylamphetamine each day. From other information contained in the materials before me it is clear that he smoked that drug.

13   The [applicant] admitted that he made about $10,000 profit from selling the drugs supplied to him by someone higher in a chain. In other words the [applicant] admitted to making about $40,000 per annum out of supplying drugs…”

Proceedings on Sentence

  1. The proceedings on sentence took place on 15 November, 5 December and 10 December 2024. Both parties provided written submissions and made oral submissions to the court.

  2. The Crown tendered a bundle of documents comprising a notice of committal, court attendance notices, a Form 1, a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), a statement of agreed facts, the applicant’s criminal history and custodial history reports, and a sentencing assessment report dated 31 October 2024.

  3. The applicant tendered the report of Dr Paul Pusey, clinical and forensic psychologist, dated 5 November 2024 and various records from the applicant’s Justice Health file.

Sentencing

  1. Having set out the facts surrounding the offences, the sentencing judge canvassed the applicant’s criminal history, which commenced in 1977. That history was remarkable in its late onset, with the exception of some gambling offences in the applicant’s younger years. The sentencing judge found the applicant’s criminal history to be consistent with that of “a regular supplier of drugs, a practice in which he appears to have been engaged over a number of years throughout his seventh decade, and speaks of an addiction that he probably acquired shortly after he turned 60”. The sentencing judge outlined the applicant’s convictions for drug offences, those offences having been committed in January-July 2003, February 2016, January 2018, August 2020, October 2020, October 2021 and May 2022. The sentencing judge observed (at [29]):

“It can be seen from the matters that were dealt with initially by Central Local Court on 20 January 2021 and by this Court on appeal, the offences of October 2021 and the offences of May 2022, that the [applicant] has on each occasion come back to peddling drugs, probably to maintain his own drug addiction.”

  1. The sentencing judge also outlined the applicant’s recent custodial history. At the time of the applicant’s arrest on 18 October 2023, he was on parole in relation to an aggregate sentence of 18 months imprisonment with a non-parole period of 10 months, commencing on 21 May 2022. That sentence was in relation to the May 2022 drug offences, which comprised four counts of supply prohibited drug and two counts of deal with proceeds of crime. The sentence was imposed by the Downing Centre District Court, following the applicant’s appeal from the sentence imposed on him in the Local Court.

  1. The applicant’s recent cycle of re-offending can be summarised in the following way. Having received his first custodial sentence, a sentence of 20 months imprisonment with a non-parole period of 10 months, for offences relating to the supply of drugs committed in August and October 2020, the applicant reoffended within two months of his release. Following a further sentence of 18 months imprisonment with a non-parole period of 10 months, the applicant reoffended, again, within two months of release. He again received a sentence of 18 months imprisonment with a non-parole period of 10 months, and was released in March 2023. He committed the present offences some six months after that release. The present was thus the fourth sentence of imprisonment for similar offending, all after the applicant had turned 60.

  2. The sentencing judge noted that the commission of the offences while the applicant was on parole was an aggravating factor.

  3. The sentencing judge considered the application of the statutory aggravating factor that “the offence was committed in the presence of a child under 18 years of age” pursuant to s 21A(2)(ea) of the CSPA. This is the subject of ground 2, discussed below.

  4. The sentencing judge went on to consider the report of Dr Pusey. Dr Pusey canvassed the applicant’s personal circumstances and substance use history, and diagnosed the applicant with substance use disorder, the substance being methylamphetamine. Having regard to the applicant’s history, the sentencing judge considered that the applicant’s retirement following his triple bypass surgery put him at a “loose end and led to his taking up using methylamphetamine and that also led to his falling into the wrong company”. The sentencing judge also noted Dr Pusey’s opinion as to the applicant’s levels of remorse and insight, extracted as follows:

“In relation to the charges for which he is due to be sentenced, during his clinical interview, [the applicant] acknowledged his guilt in relation to his offending. It is a positive prognostic indicator that he is able to demonstrate a level of insight into the causal mechanism of his offending, and in particular the need for a total cessation of his substance use to reduce his risk of recidivism.’”

  1. The sentencing judge considered the sentencing assessment report tendered by the Crown, which assessed the applicant at a medium risk of re-offending according to the Level of Service Inventory-Revised assessment tool. He also considered the applicant’s health with regard to the applicant’s Justice Health records. He made the following findings (at [44]-[46]):

“44   …The only concerns expressed appear to have been the need for referral back to a cardiologist. …

“45   The most recent notes indicate that the [applicant] has never had a myocardial infarction. That he has some arthritis, which at the age of 70 would be abnormal not to have, and that as far as [Gastro-Oesophageal Reflux Disease] is concerned, that was not causing any current problem. The arthritis appears to affect the right wrist, but the [applicant] told an examiner on 14 November 2023 that that was not causing any significant pain. On one occasion in December 2023 the [applicant] had a lower respiratory tract infection, there is nothing unusual about that. The last medical record in Exhibit 2 refers to some dental surgery which was practiced in July 2024, but indicates that there is no significant problem in that regard.

46   As far as I can ascertain, the [applicant] will not be at risk if sentenced to a further period of imprisonment…”

  1. The sentencing judge found that the objective seriousness of the proceeds offence was “at the lower end of the range”. In so doing, he considered that the applicant “was amassing money with which to buy more drugs from the supplier to him so that he could continue supplying to those lower in the chain”. The sentencing judge did not make a finding as to the objective seriousness of the commercial supply offence. No complaint was made with respect to this omission.

  2. The sentencing judge made a finding of special circumstances for the purposes of varying the ratio of the non-parole period to the total sentence, those circumstances being “the [applicant]’s age and the need to have him on parole for a substantial period of time so that he may be assisted by Community Corrections to abstain from illicit drugs”. Consequently, the statutory ratio of 75 percent was reduced to 66 percent.

Ground 1 – His Honour failed to apply a utilitarian discount

  1. While framed as it is above, the applicant’s complaint as elaborated in submissions is a failure to discount the applicant’s sentence for the utilitarian value of his plea of guilty in accordance with Div 1A of Pt 3 of the CSPA, which includes s 25D.

  2. Section 25D(1) and (2), which are the presently relevant provisions, provide:

25D   Sentencing discounts for guilty plea for offences dealt with on indictment

(1)   Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.

(2)   Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows-

(a)    a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence,

(b)    a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender-

(i)    pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii)    complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c)    a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

  1. The applicant was committed to sentence from the Local Court, which indicates that pleas of guilty had been accepted by the magistrate. None of the exceptions referred to in s 25D(2) applied, with the result that s 25D(2)(a) was operative. No discretion was reposed in the sentencing judge with respect to the discount: s 25D(1). This was subject only to s 25F(2) which provides an exception to the discount regime where the offender’s level of culpability is so extreme that the discount should not be applied or should be reduced, and s 25F(4) which applies where there has been a disputed facts hearing. There was no determination (or suggestion) that the applicant’s level of culpability was such that s 25F(2) applied and there was no disputed facts hearing. A discount of 25 percent was mandated by the legislation: see Sampson v R [2025] NSWCCA 25. This was both the mandatory and the exclusive discount to be allowed for the utilitarian value of the applicant’s plea of guilty: s 25A(2), CSPA.

  2. While the provisions explicitly provide that a failure to comply with the division does not invalidate the sentence (s 25F(8)), that does not mean that such a failure will not amount to an error amenable to appeal pursuant to s 5 of the Criminal Appeal Act: s 101A CSPA; DS v R [2025] NSWCCA 53 per Mitchelmore JA at [63]; Forti v R [2016] NSWCCA 127 at [48]-[49]; R v Tuncbilek [2004] NSWCCA 139 at [33].

  3. Despite the applicant’s entitlement to a mandatory discount, no reference was made to the application of any such discount by the sentencing judge in his reasons for imposing the sentence. The applicant’s submission is that no discount was applied. His argument is, necessarily, that the sentencing judge’s failure to make any reference to the application of a discount should lead to an inference that no such discount was applied.

  4. There is some support for the applicant’s contention. R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 was decided prior to the enactment of Div 1A of Pt 3, but is nonetheless relevant. In the context of providing a guideline judgment with respect to the utilitarian discount to be applied with respect to pleas of guilty, Spigelman CJ said (at [52]-[53]):

“52 The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations. The position may not be the same with respect to other matters which are required to be taken into account, either at common law or by reason of a general scheme listing relevant considerations, such as that found in s 16A of the Crimes Act 1914 (Cth).

53   It may not have been entirely clear prior to this judgment that the absence of reference to consideration of a guilty plea in the sentencing process would generally be regarded, on appeal, as an indication that a relevant consideration had not been given weight. In the course of formulating this guideline the Court has been asked to determine that such should be regarded as the case in the future. This is designed to overcome the problem that the evidence and submissions before the Court in these proceedings have identified, namely the extent to which practitioners do not accept that a guilty plea, particularly an early plea, is in fact taken into account by sentencing judges. As part of the process of overcoming this perception the Court should, in my opinion, adopt the approach as generally applicable to decisions on sentencing for State offences delivered after a reasonable period following the handing down of this judgment.”

  1. As set out above, the “general rule” is the absence of any reference to the plea in the course of sentencing, will result in an inference that a plea has not been given weight. However, there will be cases where other factors have the result that it can be inferred that the plea was taken into account: see Borri v R [2023] NSWCCA 166 at [36]-[45]. The respondent submits that that is the case here.

  2. As canvassed in Hamill J’s typically helpful discussion of the issue in Borri at [36]-[45], there have been, since Thomson and Houlton, a number of appeals in this Court based on the failure of the sentencing judge to expressly refer to the application of a discount for the utilitarian value of a plea of guilty, with different results being reached in different cases.

  3. In support of the submission that the appropriate discount was given, the respondent tendered two documents on the appeal. The first of these was a document obtained from the District Court file. The document has the appearance of an official court document, bearing at the top of the page the New South Wales coat of arms, under which is the heading “DISTRICT COURT New South Wales”:

  1. The respondent relies on the words “NOTE: 25% discount for early guilty plea on each of the indicatives” in the final line of the document. The respondent, in written submissions, relied on this document as the record of “the formal orders of the Court”. It is not clear what was meant by this. It was not the formal order of the court by which judgment was perfected: see R v Lapa (No 2) (1995) 80 A Crim R 398; NH v Director of Public Prosecutions for the State of South Australia (2016) 260 CLR 546; [2016] HCA 33 at [30].

  2. The old rule in relation to the orders of the court being perfected when entered on the indictment discussed in R v Lapa (No 2) and NH v Director of Public Prosecutions for the State of South Australia has been modified by the District Court Rules 1973 (NSW). Pt 53, r 12 of those rules provides:

12   Entry and recording of judgments, orders, sentences, directions or recommendations

Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on:

(a)   the indictment in the proceedings,

(b)   the appropriate court file, or

(c)   the appropriate computer record,

and that entry shall, when signed by the Judge or entered on the appropriate computer record, be the record of the judgment, order, sentence, direction or recommendation.

  1. It can be accepted that the document formed part of the court file for the purposes of r 12(6). The document was not, however, signed by the judge. Rather, on the face of it, it was signed by the associate. Counsel for the Crown, at the hearing, acknowledged that the document did not fall within r 12 but submitted that it was a document that could be taken into account as relevant to the question of whether a discount of 25 percent had been given for the utilitarian value of the plea of guilty. I am not of the view that the document has any particular status in these proceedings. I do not accept that it can be taken into account to support any inference. Whilst it was not objected to, in my view it is irrelevant.

  2. The respondent also relied on the orders recorded on JusticeLink. JusticeLink is the official computerised records system used by the court and is thus, for the purposes of Pt 53, r 12(c), the “appropriate computer record” on which orders may be entered. The JusticeLink record contains an entry for each of sequences 3 and 5. After setting out the offence, the following appears, in identical terms, with respect to each offence:

“The [applicant], DIMITRIOS TSOUMBANELLIS, is sentenced to an aggregate term of imprisonment of 4 years, 6 months to commence on 18 October 2023 and expiring on 17 April 2028 with a non-parole period of 3 years. The [applicant] is first eligible for parole on 17 October 2026.

Form 1 matters taken into account: 2023/00331348 - H 370222996

Seq 4 - Actual offence - Owner/occupier knowingly allow use as drug premises-1st off

Seq 6 - Actual offence - Supply prohibited drug >small & <=indictable quantity-T1

The Indicative Term for 2023/00331348-003 (H370222996/3/10941274) is 4 years with an Indicative Non-Parole Period of 2 years, 6 months. Sentence discount of 25.0% is included. Exception: Guilty plea offer made

Form 1 has also been taken into account.

The Indicative Term for 2023/00331348-005 (H370222996/5/11220308) is 2 years with an Indicative Non-Parole Period of 1 year, 6 months. Sentence discount of 25.0% is included. Exception: Guilty plea offer made

. I have found special circumstances.

. Eligible to be considered for release to parole at the expiration of the non-parole period.”

  1. There are also entries for sequence 4 and sequence 6 which indicate those offences were taken into account on a Form 1 (although the offence in relation to which they were taken into account is not stipulated).

  2. It can be accepted that the computer entry includes “the record of the judgment, order, sentence, direction or recommendation”. It is, therefore, the court record of the aggregate sentence imposed on the applicant and has significance in that regard: see Cullen v R [2014] NSWCCA 162 at [36]. The words noting the application of a discount to the indicative sentences are not, however, a “judgment, order, sentence, direction or recommendation” within r 12. In this regard, I do not accept the respondent’s submission that they are an “order”. They do not direct anyone to do anything. No one is bound by them. They may explain how the sentence was arrived at, but the place for reasons is in the reasons for sentence delivered in court. I am not of the view that the JusticeLink record assists the respondent.

  3. While the above documents do not assist the respondent’s submission, there are a number of circumstances suggesting the plea was taken into account.

  4. First, the matter was listed before his Honour following the applicant’s committal for sentence. Further, there was no dispute before the sentencing judge that the applicant was entitled to a discount of 25 percent for the utilitarian value of those pleas pursuant to s 25D(2)(a) of the CSPA. This was explicitly acknowledged by counsel for the applicant and the Crown in their written submissions.

  5. Further, at the commencement of his reasons his Honour said:

“[The applicant] stands for sentence as a consequence of pleading guilty to two substantive charges. The first charge was that on the 18th day of October 2023 at Ultimo in this State he did knowingly take part in the supply of methylamphetamine, being an amount which was not less than the commercial quantity applicable to that drug. That is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 20 years. Parliament has fixed a standard non-parole period of ten years.

I would have to apply that standard non-parole period if the [applicant] had pleaded not guilty, had been convicted after trial of the offence and the objective seriousness of the offence was in the mid-range.”

  1. Significantly, in arriving at the indicative sentences with respect to the commercial supply offence, his Honour had regard to the statistics provided by the Judicial Commission of NSW. Having referred to the range of sentences generally, his Honour then referred to statistics which were refined to more closely meet the present case by factoring in the presence of a Form 1, prior convictions of a similar type with custody, the identity of the particular drug, and, critically for present purposes, a plea of guilty. It might be noted that his Honour said that on adding those factors, “the statistics give me a head sentence of 48 months with a non-parole period of 30 months”, which was precisely the indicative sentence his Honour ultimately arrived at.

  2. It can be accepted that the present case has similarities to Tran v R [2020] NSWCCA 39, a case relied on by the respondent, where the inference was drawn that the appropriate discount was applied. Certainly, having regard to the matters I have referred to above, it appears his Honour was cognisant of and took into account the plea of guilty, in at least some way. More difficult is the question of whether his Honour took it into account by providing a 25 percent discount for the utilitarian value of the plea.

  3. His Honour’s opening reference to the plea of guilty made no reference to the timing of that plea. The case is different from Tran in that regard. In Tran, the opening observation of the sentencing judge referred not only to the plea, but to the fact of its entry in the Local Court. The timing is of course critical to the extent of the discount applied. Similarly, while his Honour had regard to the statistics in relation to cases where there had been a plea of guilty, those statistics did not differentiate the data based on the timing of the plea. The only circumstance among the various matters relied on by the Crown which is relevant, not just to the plea, but to the extent to which the sentence was to be discounted, is the joint submissions of the parties. An unadopted submission, even if jointly made, is a shaky foundation from which to draw a positive inference that the matter was properly taken into account.

  4. Pointing the other way, at least with respect to the extent of any discount, are the indicative sentences themselves. While some rounding may have occurred, sentences of 4 years and 2 years, after the application of a 25 percent discount, do not lend themselves to obvious starting points. This makes the question of whether a discount was applied and, if so, the extent of its application, even more opaque: cf Edwards v R [2017] NSWCCA 160 at [40]; Woodward v R [2014] NSWCCA 205; (2014) 68 MVR 376 at [11]. It leaves this Court to guess at the starting points.

  5. In Lee, Matthew v R [2016] NSWCCA 146, Basten JA and McCallum J, after analysis of the proper approach to the issue, concluded (at [37]):

“37   Because the plea is a mandatory consideration (s 22 says the court ‘must take [it] into account’), it must form part of the reasoning process and should therefore be addressed in the judgment. If the appellate court can be affirmatively satisfied that the plea was taken into account and an appropriate discount allowed, the failure to so state in the sentencing judgment may be treated as an immaterial error. Where there is a real possibility that it was not properly considered, failure to refer to the issue in the judgment should be treated as a material error.”

  1. The above is consistent with what was said by the High Court in Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [14], where the High Court concluded that the “absence of reasons sufficient to exclude” the possibility of legal error having occurred constituted legal error. See also Hayne J’s observation in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130]).

  2. Ultimately, in the present case, the resolution is straightforward. Somewhat belatedly, in submissions in reply, the matter having been raised by the Court, the applicant sought to expand the ground of appeal to incorporate a failure to comply with s 25F(7) of the CSPA, which forms part of Div 1A, Pt 3 of the CSPA, the division of the act with which the ground is concerned. The respondent did not oppose the applicant being granted leave to do so. While leave was granted, it is to be expected that, prior to drafting grounds of appeal, and certainly well before oral argument, counsel will have read the relevant legislation. Section 25F provides:

25F   Other provisions applying to sentencing discount

(1)   Application This section applies to a sentencing discount under this Division.

(2)   Exception to application of discount—level of culpability The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines, on its own motion or on the application of the prosecution, that the discount should not be applied or should be reduced because the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance for, or a reduction of, that discount.

(3)   If a case conference certificate was filed in committal proceedings for the offence, a prosecutor is not entitled to apply to the court for a determination that the discount should not be applied or should be reduced unless the certificate records that the prosecutor notified the offender’s legal representative, at or before the conference, of the intention to make the application.

(4)   Exception to application of discount—disputed facts The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines that the discount should not be applied or should be reduced because the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender.

(5)   Offender to establish grounds for discount The burden of establishing that grounds exist for the sentencing discount lies on the offender and must be proved on the balance of probabilities.

(6)   Application to Drug Court proceedings The sentencing discount applicable to a person who is sentenced for an offence under the Drug Court Act 1998 applies to a person who indicates an intention to plead guilty to an offence before being referred to the Drug Court, and who subsequently pleads guilty to the offence before the Drug Court, as if the person had pleaded guilty to the offence before being committed for sentence in committal proceedings for the offence.

(7)   Discount information to be given to offender by court The court must indicate the following to the offender when passing sentence for an offence and must record the matters indicated-

(a)   if the sentencing discount is applied, how the sentence imposed was calculated,

(b)   if the court determines in accordance with this section not to apply or to reduce the discount, the reasons for the determination.

(8)   Sentence not invalidated by failure to comply The failure by a court to comply with this Division does not invalidate any sentence imposed by the court.

(9)   No discount where life sentence A sentencing court must not allow any discount under this Division for a guilty plea if the court determines a sentence of life imprisonment.

  1. Plainly, if a discount was in fact allowed, s 25F(7)(a) was not complied with. Conversely, although it was not suggested this was the case, if no discount was allowed, s 25F(7)(b) was also not complied with.

  2. While s 25F(8) provides that the “failure by a court to comply with this division does not invalidate any sentence imposed by the court”, that sub-section speaks to the validity of the pronounced sentence and does not prevent the applicant relying on the error on appeal: s 101A, CSPA and the cases referred to above.

  3. Having regard to the above, I am inclined to the view that the mandatory discount of 25 percent required by s 25D(2)(a) was not applied to the indicative sentences. In any event, s 25F(7) was not complied with. Ground 1 has been established.

Ground 2 – His Honour erred in including “the presence of children” as an aggravating factor in relation to the indicative sentences and the form one

  1. As the facts tendered establish, the applicant was in possession of drugs in the premises where he lived with his partner and her two young children. He pleaded guilty to being in possession of those drugs for the purpose of supply and admitted his guilt with respect to the premises being used as a drug house. The sentencing judge said (at [26]-[28]):

“26 One matter which was the subject of some little debate before me was a submission made by the Crown, that there was in the current case an aggravating factor pursuant to s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999, in that at the time of the offences the two young children of the [applicant]’s partner aged eight and five were residing in the premises and the premises were used to store prohibited drugs for the purpose of supply, including the living room, the balcony and the kitchen. The Crown omitted to point out that it also included the laundry.

27 S21A(2)(ea) states that the following is an aggravating factor:

‘The offence was committed in the presence of a child under 18 years of age.’

28   That aggravating factor has not been infringed because there is no evidence that the [applicant] actually supplied prohibited drugs to anybody in the presence of the children. However, in my view the fact that the drugs were kept in the residence in which the [applicant] and his partner and the children resided must be taken into account, because there is no evidence that the children were protected from the drugs, in that for example, there were bags of drugs found on the balcony table with the scales, and the drugs could easily be discovered by the children in the places where they had been left and that exposed them to a danger. I take into account the matter on the Form 1, that is the owner occupier knowingly allowing his premises to be used as drug premises is one matter on the Form 1 and one matter to which the presence of the children was probably a relevant aggravating factor to that offence, and if not an aggravating factor as such, it certainly increases the culpability for that offence because it appears to have been inadequate protection for the children from coming across the drugs.”

  1. The applicant submitted that, while his Honour did not regard the aggravating factor in s 21A(2)(ea) to be made out with respect to sequence 3, he nonetheless erred in regarding the offence as serious on the basis that it “exposed [the children] to a danger”.

  2. The gravamen of offences involving prohibited drugs is the danger they pose to the community. There is a greater concern where the danger is posed to vulnerable members of the community such as children. In the circumstances, and having regard to the locations where the drugs were found, there is no error in his Honour’s finding that children were exposed to danger. It was not necessary that the risk was realised before his Honour could take this matter into account. The case is quite unlike McLaughlin v R [2013] NSWCCA 152 where, while there were children in the home, it was not established that they witnessed the assaults with which the offender was charged. Here, the offences were ongoing with drugs located in common areas in the home in which the children lived.

  3. With respect to the matter on the Form 1 , his Honour found that it was quite probably a relevant aggravating factor to that offence, and “if not an aggravating factor as such”, I interpolate, within s 21A(2)(ea), that it certainly increased the “culpability for that offence”. For the same reasons as given above with respect to the commercial supply offence, there was no error in this finding.

  4. I would reject ground 2.

Ground 3 – His Honour failed to take into account the remorse and age of the applicant as a mitigating factor on sentence

  1. Despite the formulation of the ground, there was no suggestion that these asserted errors were related. I will deal with each separately.

The applicant’s remorse

  1. In written and oral submissions, the applicant’s counsel submitted that the applicant was remorseful. This was put in support of a submission as to the applicant’s prospects of rehabilitation, albeit it was acknowledged, realistically, that those prospects remained guarded.

  2. The sentencing judge did not make an explicit finding as to either the presence of remorse, or, if present, how it was taken into account.

  3. The respondent submitted that it was apparent from his Honour’s reasons that the applicant’s remorse had been taken into account. Implicit in this submission was an acceptance that the applicant was entitled to a finding that he was remorseful, that finding not being precluded by s 21A(3)(i) of the CSPA. The respondent relied on the following passages in his Honour’s reasons:

  1. The reference to the applicant’s admissions at [12]:

“He went on to admit that he received a supply of prohibited drugs every three months from the supplier to him. That three monthly supply was worth about $45,000 which he then sold during each three month period. The [applicant] admitted that he had most recently supplied illicit drugs on the weekend prior to the execution of the search warrant and his arrest. The [applicant] also admitted to the police that he knew that he was breaching the conditions of his parole. The [applicant] admitted that he himself was a drug user and was using approximately 1 gram of methylamphetamine each day. From other information contained in the materials before me it is clear that he smoked that drug.”

  1. The recitation of the following part of Dr Pusey’s report at [41]:

“In relation to the charges for which he is due to be sentenced, during his clinical interview, [the applicant] acknowledged his guilt in relation to his offending. It is a positive prognostic indicator that he is able to demonstrate a level of insight into the causal mechanism of his offending, and in particular the need for a total cessation of his substance use to reduce his risk of recidivism.”

  1. The discussion of the applicant’s potential path to rehabilitation at [43] and at [46]:

“43   Considering the [applicant]’s criminal and custodial history, in my view the [applicant] must be sentenced to a fulltime custodial sentence. He must realise that doing what he does will only cause him to spend more time in prison. He has to realise that he must make the best use of his current period of imprisonment to do courses which will help him try to overcome his addiction. When released from custody, rather than going back to consuming methylamphetamine and dealing in it, he must perhaps go into a residential rehabilitation facility if he needs that to try to stay away from drugs.

…

46   As far as I can ascertain, the [applicant] will not be at risk if sentenced to a further period of imprisonment. However, he must understand that when he is released on this occasion he cannot merely return to smoking methylamphetamine, he cannot go back to selling drugs to support his habit. It is in his own interests and, if he wishes to return to the relationship with his partner that was interrupted by his most recent arrest, he must care for her and her children and that means again staying away from illicit drugs.”

  1. The respondent’s submission is without foundation. It is not possible to read from the above passages any finding that the applicant was remorseful. Further, no reference was made by the sentencing judge to the most salient part of Dr Pusey’s report, which had been referred to in the written submissions of the applicant’s counsel. Dr Pusey reported the applicant as having told him:

“I know I’ve done the wrong thing to myself and a lot of people and I’m sorry for that. I’m 71. I may only have 5 or so years left. I don’t want to live like this anymore.”

  1. Additionally, even if, contrary to the above, it could be implied that the recitation of the admissions and parts of Dr Pusey’s report relied on by the Crown amounted to a finding of remorse, it is not possible to ascertain how such a finding was taken into account. I am of the view that this part of the ground is made out.

The applicant’s age

  1. The applicant additionally asserts that his Honour erred by not taking into account his advanced age.

  2. There is no doubt that his Honour was concerned by the applicant’s age, and the consequent prospect that he may have significant issues with his health. Indeed, when the matter first came before him on 15 November 2024, his Honour raised concerns as to the absence of evidence with respect to the applicant’s health, leading to the matter being adjourned in order to obtain that material. In the event, further evidence was obtained. His Honour summarised the effect of that evidence which he found included, based on his interpretation of the abbreviations in the records, the presence of ischaemic heart disease, hypertension, coronary artery bypass grafting and gastro-oesophageal reflux disease. No issue is taken with his Honour’s conclusion with respect to the medical evidence (at [46]):

“As far as I can ascertain, the [applicant] will not be at risk if sentenced to a further period of imprisonment. However, he must understand that when he is released on this occasion he cannot merely return to smoking methylamphetamine, he cannot go back to selling drugs to support his habit. It is in his own interests and, if he wishes to return to the relationship with his partner that was interrupted by his most recent arrest, he must care for her and her children and that means again staying away from illicit drugs.”

  1. The applicant’s complaint, as a result, relates to age alone. As observed above, this was a matter of which his Honour was acutely aware, leading to the adjournment of the proceedings. Further, at the beginning of his recitation of the agreed facts, his Honour said (at [6]):

“The first of the agreed facts is the one that has caused me the greatest concern. That fact records the [applicant]’s date of birth as being in October 1954. He has recently turned 70 years old. At the time of the offending the [applicant] was aged 68 years...”

  1. His Honour relied on the applicant’s age in finding special circumstances for the purposes of adjusting the relationship between the non-parole period and the total sentence. It is thus clear that his Honour was aware of the applicant’s age, and expressly took it into account, at least with respect to the non-parole period.

  2. The vast majority of cases concerning the sentencing of aged offenders involve a combination of age and ill-health. Nonetheless, advanced age of itself remains relevant. The absence of reference to age (other than in the context of an offender’s prospects of rehabilitation or their awareness of the consequences of their actions) in s 21A(3) of the CSPA, does not impact this: s 21A(1) CSPA. In Liu v R [2023] NSWCCA 30; (2023) 306 A Crim R 105 at [39], Campbell J (Adamson JA and McNaughton J agreeing) adopted the following summary from Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539at [54]:

“It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present:

(1)   Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.

(2)   Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.

(3)   Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.

(4)   Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.”

  1. In the present matter, factors (3) and (4) above are relevant. Factor (3) is consistent with what was said in R v Mammone [2006] NSWCCA 138 at [45]. There, James J, with whom the other members of this Court agreed, was “prepared to accept that the advanced age of the respondent entitled him to some discount in sentencing, on the basis that serving a term of imprisonment will be more than usually onerous for him”, albeit that was a case where health concerns were also present. It has also been observed that, for an elderly person, “[e]ach year spent in prison represents a substantial portion of the remaining years of life which [he or she] may expect”: R v DB [2001] NSWCCA 320, citing R v Hunter (1984) 36 SASR 101, a consideration that is not entirely co-extensive with factor (3) referred to above.

  2. Returning to the present case, having stressed the applicant’s age, his Honour did not expressly indicate how it was taken into account other than in finding special circumstances. However, given the importance given to the fact by his Honour, I would not infer that its significance was overlooked insofar as it was also relevant to the head sentence. This part of ground 3 is, in my view, not made out.

Resentence

  1. Ground 1 and at least part of ground 3 having been established, it is necessary to exercise the sentencing discretion afresh.

  2. I must have regard to the various purposes of sentencing as set out in s 3A of the CSPA, noting that those purposes may, at times, pull in different directions. Punishment, deterrence, denunciation, the need to make the applicant accountable for his actions and their consequences, the protection of the community and the recognition of the harm done to the community, all have a role to play. The applicant’s rehabilitation remains a relevant consideration, although the weight to be given to this factor is impacted by the not entirely optimistic assessment of his prospects.

  3. The sentencing judge made no findings as to the objective gravity of the commercial supply offence, albeit some findings were made that are relevant to that assessment. It is consequently necessary that I consider the objective gravity of the offending.

  4. The commercial supply offence was serious. It involved a total of 386.54 grams of methylamphetamine. That figure is somewhere between the commercial quantity of 250 grams and the large commercial quantity of 500 grams applicable to that drug.

  5. As has been said many times, the role of the offender in the chain of supply will usually be more significant in assessing objective gravity than the weight of the drugs. In the present case, the applicant was himself actively engaged in the supply of drugs to purchasers for profit. His offending is more serious than that of a person engaged as for example, a courier, or in storing drugs for others.

  1. On the other hand, the applicant’s offending was not particularly sophisticated. Drug supply offences involving commercial and large commercial quantities very commonly involve persons, who are not themselves drug users, engaged with others in sophisticated organisations involving very significant profits. Here, however, the applicant acted alone rather than as a member (let alone senior member) of a well organised syndicate. The applicant was himself a user of drugs. While the offences were obviously used to fund his addiction, the offending went somewhat beyond that, and consistent with the commercial quantity involved, resulted in a profit of approximately $10,000 every four months. He is not, of course, to be sentenced for those past supplies. They do, however, inform the nature of the present offending. Financial gain is generally regarded as an inherent characteristic of the commercial supply of prohibited drugs and, as a result, does not operate to aggravate the offence unless the financial gain was significant: Huang v R [2017] NSWCCA 312. The financial gain in the present case was not such as to aggravate the offence.

  2. Having regard to the above matters, I regard sequence 3 as falling somewhat below the mid-range of objective seriousness.

  3. As set out above, his Honour found the objective gravity of the proceeds offence to be “at the lower end of the range”. Accordingly, I adopt that finding.

  4. The applicant was on parole for offences of supplying prohibited drugs and dealing with proceeds of crime at the time he committed the offences the subject of this appeal. This is a significant aggravating factor. It speaks to the need for specific deterrence and denunciation. The applicant’s record is such that he is not entitled to leniency.

  5. There was no challenge to his Honour’s finding that the applicant’s health was not such as to impact his incarceration. I would, however, accept that the applicant’s age is a matter likely to bear on him. In the context of the late onset of his drug addiction, which occurred in the context of the breakdown of his marriage of 40 years, there is a real pathos in the situation in which the applicant finds himself. The applicant’s choices, and their consequences, in the context of the limited number of years available to him, must weigh heavily on him. That said, the punishment must reflect the seriousness of the offending behaviour. Further, there must be some attenuation of the impact of the applicant’s age, given the applicant’s recent cycle of serving periods of imprisonment and quickly returning to offending.

  6. I would also accept that the applicant is remorseful. This finding is based on his report to Dr Pusey, supported by my observations above as to the likely impact of imprisonment on him. The applicant’s expression of remorse to Dr Pusey, however, appears to have been primarily focused on himself and those close to him, rather than the impact of his actions on the community more generally, where the scourge of drugs is well known. The weight I would give this matter is consequently limited.

  7. The applicant’s age and his remorse positively impact on his prospects of rehabilitation. Having regard to his recent history, however, any assessment of those prospects must remain guarded.

  8. With respect to sequence 3, it is necessary to have regard to the offences on the Form 1. The offence of supply MDMA provides context in establishing the applicant was dealing in multiple drugs and is, in this way, informative of the enterprise being conducted by the applicant. Having regard to the primary offence, it has minimal impact on any additional weight that might be given to personal deterrence. I would give some, albeit slight, additional weight to retribution.

  9. The offence of allowing premises to be used as drug premises does nothing to inform the penalty to be imposed on the applicant. Where an offender’s own premises are used for the purposes of drug supply, and the offender is charged with respect to that supply, the facts and circumstances of that offence necessarily incorporate the use of the premises. It is difficult, in those circumstances, to ascertain what an additional charge of keeping drug premises could add to the sentencing exercise other than unnecessary complexity. It is difficult to understand why such charges are proceeded with in circumstances such as the present.

  10. I have regard to the maximum penalties applicable to each of the two offences, of 20 years and 15 years, respectively, which operate as yardsticks in determining the indicative sentences. In relation to the commercial supply offence, I have regard to the standard non-parole period which has the function provided in s 54A(2) of the CSPA. While it does not directly apply in this case, it, again, is relevant as a yardstick.

  11. There is no alternative to full-time imprisonment. I intend to proceed by way of an aggregate sentence pursuant to s 53A of the CSPA. With respect to each offence, the indicative sentence will be reduced by 25 percent for the utilitarian value of the applicant’s pleas.

  12. With respect to sequence 3, the commercial supply offence, I start with a sentence of imprisonment of 5 years, which reduced by 25 percent, results in a sentence of 3 years and 9 months. I would set a non-parole period of 2 years and 3 months.

  13. With respect to sequence 5, the proceeds offence, I would start with a sentence of 3 years, which reduced by 25 percent results in a sentence of 2 years and 3 months. I would set a non-parole period of 18 months. I note that, while it is not necessary to set a non-parole period in relation to this sentence, doing so provides some assistance when it comes to considerations of totality.

  14. It is necessary to determine the relationship between the individual sentences. The commercial supply offence relates to the drugs in the applicant’s possession for the purposes of supply. The money the subject of the proceeds offence was from drugs which had, in the past, been supplied. The proceeds offence was thus not the result of the commercial supply offence: cf Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58. Nonetheless, there was significant overlap, as, while the commercial supply offence related only to the drugs in the applicant’s possession, the proceeds offence illuminated the ongoing nature of the criminal activity, which provided context to the commercial supply offence. I would, as a result, allow substantial concurrency. With respect to the aggregate sentence, like the sentencing judge, I find there are special circumstances for the purposes of s 44(2B) of the CSPA warranting a reduction of the ratio between the head sentence and the non-parole period. Those circumstances are the applicant’s need for rehabilitation, his age and his underlying health conditions. While none of those conditions are presently acute, there must be a significant prospect that this will change in the near future.

  15. I would impose a sentence of imprisonment of 4 years with a non-parole period of 2 years and 6 months to commence on the date the applicant entered custody.

  16. I propose the following orders:

  1. Leave to appeal granted.

  2. Appeal allowed.

  3. The sentence imposed in the District Court on 10 December 2024 is quashed.

  4. The applicant is sentenced to an aggregate term of imprisonment of 4 years, comprising a non-parole period of 2 years and 6 months with a balance of term of 18 months, commencing on 18 October 2023. The non-parole period will expire on 17 April 2026. The total term is due to expire on 17 October 2027.

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Decision last updated: 25 July 2025

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