Da Silva v R

HEADNOTE [This headnote is not to be read as part of the judgment] On 6 December 2023, Bennett DCJ sentenced the applicant to an aggregate term of imprisonment of twelve years and nine months, with a non-parole period of eight years and three months. This sentence related to charges of dealing with proceeds of indictable crime ($100,000 or more) contrary to s 400.4(1) of the Criminal Code (Cth), trafficking in a commercial quantity of a controlled drug contrary to s 302.2(1) of the Criminal Code, and trafficking in a marketable quantity of a controlled drug contrary to s 302.3(1) of the Criminal Code. A further offence of trafficking in a controlled drug contrary to s 302.4(1) of the Criminal Code was also taken into account on sentencing. Search warrants were executed by the police on 29 September 2022, including in respect of the applicant's vehicle and residence. In the execution of these warrants, the police identified the following items (among other things): (i) 2,791.1 grams of pure methamphetamine in a black backpack and 2,631.6 grams of pure methamphetamine in the applicant's vehicle; (ii) 282 grams of cocaine in the applicant's vehicle; (iii) 18.7 grams of pure cocaine, 236.2 grams of cannabis and 53.7 grams of heroin in the applicant's premises and vehicle; and (iv) $233,890 in cash, which the applicant had no legitimate reason to be in possession of based on his banking and tax records. At the sentencing hearing, the applicant relied upon affidavits from himself and his mother as well as a report from a psychologist, Tim Watson-Munro (Watson-Munro report). None of this evidence was challenged by the Crown. In his affidavit, the applicant said that he was sexually assaulted in or around 2007 (when aged 10) on many occasions over a few months by a family friend. He did not report this to anyone. He said that as a result he had experienced flashbacks, nightmares and post-traumatic stress disorder. He said that he began using drugs at the age of 14 to assist in dealing with the trauma and his recreational use of drugs quickly became an addiction. The Watson-Munro report said that "[t]his event also offers some explanation as to his early foray into substance use". The sentencing judge accepted that the applicant had a long running history of misuse of drugs. In respect of the history of childhood abuse, in the absence of further material to support the assertion, the sentencing judge attributed it little, if any, weight. During the course of the sentencing hearing, the sentencing judge noted during an exchange with Senior Counsel for the applicant that the sentencing judgment would be advanced on the premise that the sexual abuse occurred, however his Honour queried the nexus between this abuse and the offending. In his report, Mr Watson-Munro described the applicant as a "psychologically troubled man" and said that "appropriate testing confirms a moderate and recurring Depressive Disorder with a broad spectrum of symptoms". This diagnosis was relied upon by the applicant in his written submissions at the sentencing hearing. However, in the sentencing judgment, the sentencing judge ultimately rejected Mr Watson-Munro's diagnosis. The issues raised by the applicant's grounds of appeal were: (i) Whether there was a denial of procedural fairness in that the sentencing judge indicated that he would proceed on a particular factual basis (being that the applicant had been subject to sexual assaults whilst he was a child) but in the event sentenced the applicant on a different basis without affording him an opportunity to be heard on the matter (ground 1); (ii) Whether the sentencing judge erred in denying procedural fairness to the applicant by rejecting the psychologist's diagnoses without notice to the applicant (ground 1A); and (iii) Whether the sentencing judge erred in failing to take into account a relevant consideration, namely the applicant's experience of childhood trauma (ground 2). The Court (Stern JA, Dhanji and Faulkner JJ agreeing) granting leave to appeal and allowing the appeal: As to issue (i) and (iii) (1) To the extent that the applicant sought to rely upon his history of sexual abuse on sentence, it was for the applicant to satisfy the sentencing judge of the matters on which he relied on the balance of probabilities. This included the fact of the abuse having occurred, and, the abuse being relevant to the offending, that the abuse played a role, in some material way, in his offending conduct: [18]. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54; DC v R [2023] NSWCCA 82; KAB v R [2015] NSWCCA 55, cited. (2) The evidence that the applicant had been sexually abused as a child was taken into account by the sentencing judge but was ultimately given little or no weight. The primary judge had signalled during the hearing that the question of "nexus" was one which troubled him, and the applicant was able to, and did, make submissions as to the causative significance of his history of sexual abuse: [42]. In the circumstances, there was no procedural unfairness. Edmonds v R [2022] NSWCCA 103; Beevers v The Queen [2016] VSCA 271, distinguished. (3) The sentencing judge did not fail to have regard to a material consideration. The sentencing judge had regard to the applicant's history of sexual abuse, but ultimately accorded that history little or no weight in the sentencing process: [43]. As to issue (ii) (4) Mr Watson-Munro's diagnosis flowed from his clinical impression of the applicant and the outcome of assessment using the Beck Depression Inventory. In the absence of any challenge to Mr Watson-Munro's opinion whether by submission or cross-examination, it was procedurally unfair for the primary judge to have rejected Mr Watson-Munro's diagnosis without giving any indication to the applicant that he proposed to do so: [55]-[56]. Devaney v R [2012] NSWCCA 285; O'Neil-Shaw v The Queen [2010] NSWCCA 42, cited. (5) Although there is no suggestion in the Watson-Munro report that the applicant's depression had caused his offending, the applicant's depressive disorder, which was ongoing at the time of Mr Watson-Munro's interview of him, may have the consequence that a sentence may weigh more heavily on the applicant. That was a matter for the sentencing judge to consider, having regard to the opinion set out by Mr Watson-Munro: [58]. Crane v R [2024] NSWCCA 87, cited. As to resentencing (6) The Court inferred that suffering from the applicant's depressive disorder would cause a custodial sentence to weigh more heavily than would otherwise be the case: [67]. (7) Having adopted a discount of 25% for the applicant's guilty pleas, the Court imposed an aggregate sentence, to commence on 29 September 2022, of ten years and nine months for the three offences (to expire on 28 June 2033), with a non-parole period of six years and ten months (to expire on 28 July 2029): [69].