Elchaar v R

Category: Principal judgment

Parties: Elias Elchaar (Applicant)
Rex (Respondent)

Representation: Counsel:
Mr P Lange (Applicant)
Mr A Chhabra (Respondent)
Solicitors:
One Group Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2021/00164110

Publication restriction: Nil

JUDGMENT

1. DAVIES J: I agree with Lonergan J.

2. LONERGAN J: The applicant, Elias Elchaar, seeks leave to appeal against the sentence imposed on him following his plea of guilty to conspiring to traffic a commercial quantity of a controlled drug, namely methamphetamine. Two offences that occurred during the same period and circumstances of the other offending were also taken into account in the Section 16BA Schedule.

3. The sentencing judge, Buscombe DCJ, imposed a term of imprisonment of 10 years and 6 months, with a non-parole period of 6 years and 6 months, which took into account a 25% reduction in sentence based on the guilty plea.

4. The applicant appeals his sentence on two interrelated grounds:

5. His Honour erred in concluding that the applicant’s moral culpability had not been reduced as a result of his neurocognitive disorder by:

(a) Rejecting the evidence of the neuropsychologist, Mr McBride; (b) Posing the wrong question, namely whether the applicant’s judgment was so impaired by his mental health that he did not understand the likely consequences of his actions; and (c) Failing to take into account the unchallenged opinion expressed by Dr Henderson.

2. His Honour erred in failing, despite the fact that the applicant suffered from a neurocognitive disorder, to moderate the weight to be given to general deterrence in the sentencing exercise by:

(a) Rejecting the evidence of the neuropsychologist, Mr McBride; and (b) Failing to take into account the unchallenged opinion expressed by Dr Henderson.

5. The offence on the indictment was one count of conspiracy to traffic a commercial quantity of a controlled drug contrary to ss 11.5(1) and 302.2(1) of the Commonwealth Criminal Code. That offence attracts a maximum potential penalty of life imprisonment and/or 7,500 penalty units. The applicant was sentenced to 10 years and 6 months’ imprisonment.

6. The offences taken into account on sentence via the Section 16BA Schedule were dealing in proceeds of crime – money or property worth $1,000,000 or more in contravention of ss 11.5(1) and 400.3(1A) of the Criminal Code (Cth), which attracts a potential maximum sentence of 25 years’ imprisonment and/or 1,500 penalty units, and unlawfully possessing a radiocommunications device without authority in contravention of s 47(1) of the Radiocommunications Act 1992 (Cth), which attracts a potential maximum penalty of 2 years’ imprisonment and/or 1,500 penalty units.

The facts of the offending

7. The facts upon which the offender was sentenced were the subject of a Statement of Agreed Facts, and are relevantly set out in the sentencing judge’s remarks on sentence. The following summary is taken from those remarks on sentence.

8. As part of the relevant police operation, the offender, together with Brian Anthony Blackman, Jarrod Patrick Gallagher and Otenili Iongi, referred to as ‘the syndicate’ in the agreed facts, were subject to physical and electronic surveillance.

9. Surveillance revealed that between 1 January 2021 and 7 June 2021, the syndicate conspired to traffic a commercial quantity of methamphetamine from Sydney, New South Wales to Perth, Western Australia in a crate. Communication between the syndicate via AN0M encrypted devices established that the crate was capable of containing up to ten units of methamphetamine described as “fry” or “work” in their communications.

10. The syndicate conspired to engage in conduct in relation to money which was proceeds of general crime being cash which the syndicate described as “loot” or “papers” which was to be and in fact was transported in a crate from Perth, Western Australia to Sydney, New South Wales.

11. Communications between the syndicate via AN0M encrypted devices established that the crate contained approximately $8 million in cash. At all times the offender was a user of an AN0M device with unique sender identification “EACEB4” with the IMEI number set out in the agreed facts. The service was active between 12 January 2021 and 2 June 2021 with handles being “Glamma 1” and “Huckleberry” in that time.

12. During the relevant period the offender was part of the following AN0M group chats together with Blackman, Gallagher and Iongi: “Happy 2021”, “Glammazz”, and “Transjob”. During the relevant period the offender also communicated directly with Iongi and Blackman via AN0M.

13. In terms of organising crates to be used for transportation, on 15 January 2021, Iongi contacted the offender and asked whether the persons in the Happy group chat were “involved on the job with us, warehouse, crates, et cetera”. The offender stated that “the only group we on at the moment is just us, me, you, Syd 7”, which is a reference to Blackman, “that’s our brother, and our friend Glamma”, a reference to Gallagher, “he talks with company for us”.

14. On 16 January 2021 Gallagher told a Salvator Lupoi that he had secured a contract to move “eye”. The word “eye” is code for methamphetamine. Lupoi provided Gallagher with advice as to the specification for the crates in which it was planned to transport the methamphetamine. On the same day Gallagher provided an update to the syndicate in the group chat. It read “SA are sending the crates up Tuesday morning, then when the packed crates arrive in Western Australia your people can take measurements of the crate and then replicate it and build ten or so”. The offender replied “Yes, okay, that’s easily done”.

15. On 20 January 2021 the syndicate had a further discussion in the group chat about the crates they were awaiting and the possibility of using the same crate used to transport the “work”, code for drugs, to Western Australia to transport “papers”, code for money, back to Sydney.

16. In a conversation concerning what was to occur the following exchanges took place:

Offender: “Glamma, please with our [sic] a worker that drops off work and when you’re showing him how to pack, not to say where it’s going, et cetera, or anything about WA, and nothing about transport company, he’s a very good solid friend of our brother and known him all his life. He’s there to pack only and with our workers we only teach them need to know basis and that’s only the job we give them to do, not from start to finish. Thank you.”

Gallagher: “Yeah, for sure, the best way, bro, I like it.”

17. On the same day Gallagher created the Glammazzz group chat with Blackman and the offender in which they discussed how the crate would be packed. The following message exchange occurred:

Blackman: “So you know we can use Glamma’s place to pack crate for this first one.”

Offender: “Yes, sweet, thank you. We’re working on getting our own place and just couldn’t do it that quick.”

Gallagher: “All I need please is to make sure that everything that is going inside the crate is already sealed up so I don’t have to fuck around. I pack it, seal it, wrap it, then it’s done. Once it’s wrapped it’s sweet, not so much stress.”

Offender: “Yes, I’ll make sure they’re all vacsealed, all we do is put in the crates.”

Gallagher said at one point “Main thing is no smell, fingerprints or DNA.”

Offender: “100% we know and do that.”

18. On the same day the offender wrote to Iongi and forwarded him a series of message from the Glammazzz group chat and he said:

Offender: “You online brother. Okay. I’ve got someone’s place we can use just this time, it’s in Bankstown just off highway. Just make sure like above that our units are fully sealed by us first properly, ready to go to crates and our friend will teach our driver how to pack, sea and wrap so it’s ready. Our driver is going to be doing packing for future work, right. That’s why I’m getting him to teach him how it’s done.”

19. On 22 January 2021 Gallagher forwarded the Happy group chat a number of messages he sent to Lupoi seeking updates about the status of the delivery of the crates. The offender responded “All good, no stress, it will eventually happen, first go is always a bit of teething”.

20. On 27 January 2021 Gallagher passed on an update from Lupoi as to the arrival of the crates. The offender responded that he needed to draw and measure the crates in order to be able to copy them. The group members discussed the logistics of this occurring:

Offender: “Hello brothers, look I’m going to need to come draw and measure up these crates so I can copy them, even take one and I’ll make bigger and smaller one’s whichever we need. I’ll need confirmation tomorrow, Glamma, please, if I am to get ready for Friday packing crate because I need 24 hour warning to get work delivered to crates.”

Gallagher: “So I’ll be picking the empty crates up on Friday, I think it’s best to aim for Monday morning drop off to yard that way we aren’t rushing and anything that gets dropped off after midday will either sit there over the weekend and not get pushed out until Monday anyway. And yeah for sure, bro, take them and use them as a template to build the others.”

Offender: “100% brother, if crates come Friday, we wait until Monday and push work out that way, there no rushing or hiccups.”

21. On 28 January 2021 the syndicate discussed building the crates in the group chat. The offender told the others that he arranged for the work, the methamphetamine, to be delivered the coming Monday. The following is taken from a conversation that occurs on that day:

Blackman: “Sweet, so there will be a few crates there so we can take some away to duplicate.”

Gallagher: “Yes, he made these a tad high, 800 millimetres but you can make them 600 millimetres if you like.”

Offender: “Hello brother, no, high will be good because it will fit more work later plus paper on return. I’ve arranged for work to be dropped to us Monday as well.”

Blackman: “So work will come early Monday then my driver will drop first thing Monday.”

Gallagher: “That would be good.”

Offender: “Yes, bro, I’m waiting to find out what time work gets here but I’m trying for early before lunch. I will get ETA tomorrow or Saturday latest.”

Gallagher: “First thing as in 7am would be great. Sweet as.”

Offender: “Okay, I will ask for early ETA and get back to you with exact time.”

Gallagher: “Okay, SA said he is going to tell me what to do when want to move more units, they have a system for that already.”

Offender: “Okay, sweet.”

Blackman: “So this first one is locked in to leave yard Monday.”

Offender: “Okay, we need to know this, this is why I was going to copy and build different sized crates so we are ready to move work, so we’re not sitting around waiting for weeks like now. I know once we get this one off we’ll be running much smother [sic].”

Gallagher: “Yeah, I asked him about sending 100-plus units and he said don’t worry, he will tell me what to do.”

Offender: “Sweet.”

22. The syndicate further discussed the size of the crates and the fact that the offender would need to modify them. During the conversation the offender stated “it’s okay to keep that big for when we do bigger lots and for bringing paper.”

23. On 31 January 2021 the offender with the assistance of Gallagher constructed the crates at Gallagher’s former business premises located at Bankstown. On the evening of 31 January 2021 in the Happy group chat, the offender confirmed that he had constructed the crates: “crates are done, bro, I’ve posted your message to the boys about lockdown in Perth and I’ve told them to jump on here to talk”.

24. On 1 February 2021 in the Happy group chat the syndicate discussed the logistics of the collection of the crates in Western Australia, the storage of the crates in Sydney and the packing of the crates. The offender asked who was going to show them how to package the crate and stated that it was important that they were shown how to do the first one.

25. During February 2021 the syndicate continued to communicate with each other regarding the logistics of the plant to deliver crates of methamphetamine to Western Australia.

26. On 17 April 2021 the syndicate commenced the Trans Job group chat. Later that day Iongi messaged the offender directly to ask when the courier would pick up the crate. The offender replied that he was waiting for another person, username Syd 7, to confirm our driver for pickup: “we be picking up crate Tuesday morning to go trans.”

27. On 18 and 19 April 2021 the syndicate continued to liaise about arrangements for the transportation of the crate containing “fry”, clearly the methamphetamine, to Western Australia. The offender stated “Brother, transport is Tuesday, we want to send work to trans depot tomorrow so we’re not rushing things, is there a problem with that?”

28. On 19 April 2021 the crate was packed with methamphetamine by workers of the syndicate at premises in Claymore, New South Wales. The offender sent a message confirming the pickup time of the crate the next day because, “I need to now organise my worker to take off work”.

29. At about 4pm on the same day the offender sent an image of the crate to the group chat wrapped with black plastic on all sides with labels affixed to the sides.

30. On 20 April 2021 the syndicate members communicated with the Transjob group chat and discussed the arrangements for the crate to be picked up from the Claymore premises and dropped to the depot, including who was to be asked for at the depot, what amount of cash was being paid to that person, what the driver should wear and the kind of car they should drive.

31. Between 20 and 23 April 2021 the crate was transported between Sydney, New South Wales to Perth, Western Australia.

32. What those agreed facts reveal is that the applicant involved himself at a number of key steps of the conspiracy, including using encrypted communication platforms (AN0M), instructing others on how to “use” a particular person and how much to tell that person about “the job” on 20 January 2021, identifying suitable premises where crates for use could be constructed on 31 January 2021, how to replicate and build the necessary crates, the logistics of collection in Western Australia, and storage and return, and in April, identifying the transport date of the “work”, sending photos of the package, wrapped and labelled crates, and arranging for their transport.

The expert reports and proceedings on sentence

33. The applicant’s case on sentence included tender of the following expert evidence:

(i) Two reports of Dr Antony Henderson, Consultant Forensic Psychiatrist, dated 3 October 2023 and 13 November 2023; and (ii) One neuropsychological report of Richard McBride, Clinical Psychologist/Neuropsychologist, dated 31 October 2023.

34. The reports were admitted without objection. Neither Dr Henderson nor Mr McBride were required by the Crown for cross-examination, but nor did they have to be cross-examined if the basis of challenge to their opinions was incorrect assumptions of fact or failure to properly take into account the agreed facts on sentence: Isaac v R (2024) 384 FLR 431; [2024] NSWCCA 2 at [59]-[62] (Davies J, Hamill and Huggett JJ agreeing).

35. Dr Henderson had assessed the applicant via audio-visual link for two and a half hours on 22 September 2023. Dr Henderson stated that he had reviewed the agreed statement of facts and the undated affidavit of Mr Michael Elchaar, the applicant’s older brother.

36. Dr Henderson quoted the applicant’s rather limited description of his offending:

“I helped out to transport some drugs. I built a wooden crate…a couple of crates and got more involved on a group chat. I organised…I put my 20 cents in…”

but did not critically evaluate the description given by the applicant compared with the agreed facts, as would normally be expected to be part of an assessment conducted by a forensic psychiatrist.

37. Dr Henderson diagnosed the applicant with Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder, arising from his adverse developmental circumstances, exposure to trauma and childhood sexual abuse.

38. In relation to the question of cognitive impairment, Dr Henderson stated that he “believed” that the applicant demonstrated cognitive impairment based on his learning difficulties, impulsive behaviours, mental state findings and cognitive assessment which appeared consistent with frontal lobe impairment or executive dysfunction. (This rather qualified conclusion pre-dated the assessment by Mr McBride).

39. Dr Henderson stated that the applicant’s mental disorders significantly contributed to his use of stimulant drugs, specifically cocaine and methamphetamine, their use representing an attempt to “reduce the distressing symptoms associated with these previously undiagnosed and untreated disorders”, and that the applicant subsequently developed a severe substance use disorder. Dr Henderson concluded that the applicant was “likely to have engaged in the offending behaviour in order to finance his self-medicating of these mental disorders”. (Emphasis added).

40. Mr McBride assessed the applicant on 18 October 2023. The report does not state whether this assessment took place in person, or the duration of the assessment. Mr McBride stated that his assessment report was based upon his clinical interview and his neuropsychological assessment of the applicant. There is no evidence that Mr McBride was provided with the agreed facts of the offending. He was thus reliant upon the (minimised) account of the offending contained in Dr Henderson’s report given by the applicant. Nothing in Mr McBride’s report suggests he was given any other account of the offending by the applicant.

41. Mr McBride found that the applicant’s neurocognitive profile was characterised by impaired attention, manifesting in a decrement in psychomotor speed and vulnerabilities distraction and significant impairments in the efficiency of frontal systems functioning. Mr McBride noted that the applicant had significant impairment of executive functioning which was likely to manifest as “poor planning, impulsive behaviour, disinhibition and failure to think through consequences”. Mr McBride stated that these functions are “probably also affected by PTSD and Major Depressive Disorder symptoms”, although he does not explain his rationale for that conclusion.

42. Mr McBride stated that the applicant’s frontal systems functioning and information processing speed are:

“well below his overall ability… He is moderately impulsive and has poor consequential thinking which is likely to cause trouble with his ability to work effectively and will also result in disordered behaviour”.

43. Mr McBride stated that the applicant met the diagnostic criteria for Major Neurocognitive Disorder due to Multiple Aetiologies, Major Depressive Disorder, and PTSD, and concluded:

“It’s likely that Mr Elchaar’s impairment of frontal systems functioning is a factor in his offending behaviour, which as far as I understand, was relatively impulsive in the context of having a new family and being concerned about his capacity to provide financially for his family.” (Emphasis added.)

44. Nowhere in his report does Mr McBride identify what he understood “the offending behaviour” to involve, nor does he explain how or why that offending behaviour can be described as “relatively impulsive”, or what he means by that phrase.

45. Dr Henderson provided a brief supplementary report on 13 November 2023. In the section titled “Opinion”, he referred to the results of the neurocognitive assessment undertaken by Mr McBride, stated that the results confirm that the applicant suffers from executive dysfunction (frontal lobe impairment), which confers “impairment in planning, impulse control, disinhibition and impaired ability to consider consequences of actions”, and that the neurocognitive test results confirm that the applicant suffers from cognitive impairments in domains that are “relevant” and are of a severity to be relevant to the offending behaviour. In essence, Dr Henderson simply repeated Mr McBride’s conclusions without any further analysis.

46. At the proceedings on sentence, it was evident that the sentencing judge had some disquiet over the “relatively impulsive offending” assumptions in Mr McBride’s report and Mr McBride’s consequential view that the applicant’s mental condition was “a factor in his offending behaviour”. This disquiet is evident in the following exchange with the Crown: [1]

HIS HONOUR: One of the difficulties in Mr McBride’s report is at p 18 of the defence bundle on p 2 of the report where he says, “As far as he understands the offence was relatively impulsive.”

PACE: Your Honour beat me to that.

HIS HONOUR: How can anyone describe this offence as relatively impulsive?

PACE: Yes.

HIS HONOUR: And if I don’t accept that proposition, and I’m unlikely to – I haven’t heard from Mr Brady, he might try and convince me otherwise – then the whole foundation for this assertion that somehow his mental health was causative of the offending seems to fall very much away.

PACE: That would be the submission of the Crown and I adopt your Honour’s remarks.

HIS HONOUR: The only thing that troubles me is the Crown just allows this report to come up, doesn’t explore with the author of it how he came to the opinion that the offence was “relatively impulsive”, a view that is central to his report in terms of the so-called causal connection, or lack thereof, between the mental health and the offending. But that seems to be how he ties the impairment of frontal systems functioning to the offending behaviour by characterising, in his understanding, that it was a relatively impulsive offence.

PACE: He goes further and indicates that it was not only relatively impulsive in the context of having a new family and being concerned about his capacity to provide financially for his family, that’s, in fact, at odds with what has been said by Dr Henderson at para 34 of the defence submissions but extract [sic] from his report at 11.4 to 11.5 where he says, “I am of the view that Mr Elchaar is likely to have engaged in the offending behaviour in order to finance his self-medicating of these mental disorders,” not one iota of reference to what Dr Henderson(as said) [sic] about being concerned about his capacity to provide financially for his family.

So within the two doctors’ reports, there appear to be contradictions within them such that the foundation for the ultimate opinion are matters about which the Court wouldn’t be able to make findings on the balance so far as it’s causative in relation to this offender’s conduct. The Crown has highlighted in its supplementary written submissions that the offending, in terms of his involvement in the conspiracy, is certainly far from impulsive. It goes over six months and involves the offender being involved in many, many communications with the co-offenders where there doesn’t appear to be any disinhibition by him to be able to do what he ultimately did in terms of organising himself, organising others, in terms of a management role, payment of fees for their services, constructi**ng what appeared to be a difficult crate and perfecting the same… (Emphasis added.)

47. Mr Brady, senior counsel for the applicant, dealt with the issue this way in oral submissions: [2]

BRADY: Ultimately, the drug addiction itself is important because of obviously the involvement in drugs but the mental health impairments, and particularly the cognitive impairment, is more than just the drug addiction. It’s then his consequential reasoning in terms of being involved in this, and I know your Honour has said in relation to the impulsive behaviour that this isn’t impulsive behaviour that, of course, depends on what one means by “impulsive”.

HIS HONOUR: What does that mean then? Your experts seemed to think that this was impulsive. I don’t know what they mean by it.

BRADY: Your Honour will see “impulsive” has to do with his concern about being able to support his family. That’s not necessarily something that is going to come and go in a heartbeat and his involvement in it is, your Honour might conclude, due to that, and when my friend says there’s nothing in the affidavits that supports that, that’s not quite right…

…

In my submission, when it comes to this offender, his cognitive impairment and his mental health impairments are ongoing, and particular [sic] his cognitive impairment, constantly. That is, it’s something that impacts upon him all the time. He’s not in a position, as someone would be without his impairments, to sit back and say, “What am I doing?” I’m not suggesting he shouldn’t have or couldn’t have, but that’s different than, of course, whether or not it impacts upon his moral culpability in not having doing it, and that’s why I say it impacts upon his moral culpability, even though it extended over this period of time, and his ability to be involved in crates and getting crates together and things of that nature aren’t governed then by the sorts of problems associated with his cognitive impairment. (Emphasis added.)

48. In the Crown’s supplementary written submissions specifically addressing the expert reports, the following statements were made on this issue, after recounting the key aspects of Dr Henderson and Mr McBride’s reports (correcting the referenced paragraphs in Moiler v R [2021] NSWCCA 73):

“Whilst the Crown accepts and does not challenge the various diagnoses of Dr McBridge [sic], it cannot be ignored that this is not offending that was not spontaneous or impulsive. Further, there is no evidence that his mental health impairments appear to have pleayed [sic] any inhibition in his capacity to actively communicate with others or carry out various tasks during the course of the conspiracy. This offender was an active participant in an ongoing conspiracy over several months (between January 2023 and June 2021).

It is therefore submitted, having regard to his mental health diagnosis, that the Court would only slightly moderate considerations such as general and specific deterrence. Further, the extent in which the Court would apply any reduction to his moral culpability would be marginal in this case – McLellan CJ at CL in DPP v De La Rosa (2010) 79 NSWLR 1 at 43-44 [177].

However, it is accepted that the Court need not apply a restrictive approach by finding a ‘link’ or ‘causal connection’ between mental health and offending before taking it into account – Moiler v R [2021] NSWCCA 73 of [sic] Carl v R [2023] NSWCCA 19.

In Moiler v R [2021] NSWCCA 73, Button J said at [59]-[61]:

[59] It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with the offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth*) v De La Rosa* (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it.

[60] I accept that the applicant on this occasion did not assert that command hallucinations had “told” him to use the fire extinguisher. But that is hardly to say that his chronic and severe mental illness could not play a significant contextual and causative role in how it was that this offence came to be committed. After all, one could reflect that, if the applicant had not been suffering from a longstanding mental illness and intellectual deficits, and all that has flowed from them, by the age of 29 his life might have turned out very differently.

[61] In similar vein, whilst it is true that abuse of prohibited drugs played a role in the commission of the offence, and that abuse of such substances is not a mitigating feature on sentence except in unusual circumstances, care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other.

Further in Carl v R [2023] NSWCCA 190 Yehia J at [67] said:

The unchallenged psychological evidence presented a profile of an individual who was experiencing severe symptomology resulting from his mental condition. Although not causally connected to the offending, the material was relevant in moderating general deterrence, retribution and denunciation, and in mitigating the sentence by reason of more onerous conditions in custody. The sentencing judge failed to have regard to these matters.”

49. In the written submissions of the applicant, this issue was dealt with by reference to extracts from the reports of Mr McBride and Dr Henderson followed by citing [177] of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, and then this single sentence:

“37. It is submitted that various mitigating aspects apply to the present offender.”

Findings on the subjective case

50. After going through the facts of the offending and making findings regarding objective seriousness, his Honour dealt with the applicant’s subjective case. His Honour’s findings are expressed with the precision and clarity of a judge well-versed in the application of relevant principles and the evaluative tasks embedded in the sentencing exercise. His Honour set out the opinions of Dr Henderson and Mr McBride, noting, consistently with principle, [3] that:

“[T]he offender’s account of his offending to Dr Henderson is untested under cross-examination and clearly does not fully represent the extent of his criminality and appears to me to be an attempt to downplay his involvement.”

51. In respect of the role played by the applicant’s mental health in the offending, his Honour made these findings: [4]

“In terms of the offender’s mental health and the application of the well-known principles summarised in DPP (Cth*) v De La Rosa* [2010] NSWCCA 194, I do not consider that there is a relevant causal connection between his mental health and the offending such that there is a further reduction in his moral culpability. I do not accept that Mr McBride’s report is a basis for finding such causal connection. As I observed earlier, I do not know what led Mr McBride to describe the offender’s offending as “relatively impulsive.” It clearly was not and required considerable planning which the offender was part of. When one has regard to the role of the offender over several months in the offending, I do not consider that the impairment of the offender’s frontal systems functioning, as discussed in Mr McBride’s report, is causally connected to the offender’s offending.

I also note that the offender was not said to suffer from an intellectual disability as such, and a person in the low average range of intelligence like this offender is clearly capable of understanding the serious nature of the offence he engaged in and choosing not to engage in such offending. Nothing in the material that is before me supports a finding that his judgment was so impaired by his mental health that he did not understand the likely consequences of his actions.

I do not accept, for the same reasons, that he is not a suitable vehicle for the expression of the sentencing principle of general deterrence because of his mental health conditions. I do accept that his time in custody will be more onerous than it otherwise would be because of his mental health conditions and have mitigated the sentence I will impose to some degree for that reason. I have similarly had regard to the impact of the Covid-19 pandemic on the conditions of custody that the offender has experienced since his arrest and the fact that he has had very few in-person visits with his partner and his young daughter in that time. It is well known that conditions in custody since the Covid-19 pandemic emerged have been much harsher than in pre-pandemic days.”

52. His Honour acknowledged that to the extent the applicant engaged in the offending to fund his drug habit, or that his judgment was impaired because of his drug use, his moral culpability for his offending would not be reduced.

53. His Honour did however conclude that the applicant’s history of drug use was linked to sexual abuse that he suffered as a young child, and that fact (the childhood sexual abuse), to a limited degree, mitigated his sentence: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.

This appeal

Ground 1: The sentencing judge erred in concluding that the applicant’s moral culpability had not been reduced as a result of his neurocognitive disorder

Ground 2: The sentencing judged erred in failing to moderate the weight to be given to general deterrence in the sentencing exercise

54. It is convenient to deal with the grounds of appeal together, because they arise from an assertion that the sentencing judge effectively “rejected” Dr Henderson’s and Mr McBride’s opinions without adequate reasons, and so failed to carry out the correct analysis directed towards potential reduction in moral culpability and potential reduction in the need for the sentence imposed to reflect general deterrence.

The applicant’s submissions

55. Counsel for the applicant, Mr Lange, submitted that in light of both Dr Henderson’s and Mr McBride’s reports, it was not open to the sentencing judge to conclude that the applicant’s moral culpability was not reduced on account of his mental health, or that general deterrence did not have diminished weight. Mr Lange contended that the sentencing judge’s “rejection of Mr McBride’s report” appeared to have been based on Mr McBride’s assumption that the applicant’s offending behaviour was “relatively impulsive in the context of having a new family and being concerned about his capacity to provide for his family”. Mr Lange submitted that the sentencing judge did not pay regard to the context in which that assertion appeared, and that he effectively rejected Mr McBride’s opinion without good reason. The context was testing for and finding impairment in the applicant’s “frontal systems functioning” which Mr Henderson described as “a factor in his offending behaviour”.

56. Separately, Mr Lange submitted that the sentencing judge applied the wrong test where he stated that: “Nothing in the material that is before me supports a finding that his judgment was so impaired by his mental health that he did not understand the likely consequences of his actions”, because as stated in De La Rosa at [177], and further discussed in DB v R [2023] NSWCCA 323 at [52] (”DB”), “The question for consideration is not whether there was a ‘causal link’ between the mental health condition and the offending, but whether the mental health condition contributed to the commission of the offence in a material way.” (Emphasis in original).

57. Mr Lange submitted that in articulating the issue in the way that he did, his Honour did not address the correct issue – that is, whether the mental health condition contributed to the offending in a material way.

The Crown’s submissions

58. Mr Chhabra on behalf of the Crown submitted that it was open to the sentencing judge to find that there was no “relevant causal connection” between the applicant’s offending and his neurocognitive disorder, and that the term “relevant causal connection”, read in context, occurring just after reference to De La Rosa, is clearly a reference to the test of material contribution as articulated in De La Rosa.

59. Mr Chhabra submitted that the report by Dr Henderson recorded a very much downplayed account of the applicant’s conduct in the conspiracy to transport drugs and money over the several months, the subject of the police surveillance and charged conduct. Although deferring to Mr McBride for a formal assessment of the applicant’s cognitive impairment, Dr Henderson’s supplementary report does no more than repeat Mr McBride’s conclusions, in circumstances where Mr McBride was not provided with the agreed facts on sentence at all. This means that Mr McBride’s evaluative assumption that the offending behaviour was “relatively impulsive” was not sustainable on the agreed facts, and so rendered his opinion consequently unsustainable because it was based on incorrect key assumptions. This was the approach his Honour took.

60. Mr Chhabra argued that it was open to the sentencing judge to reject the opinion stated in Dr Henderson’s supplementary report that the impairments were relevant to the offending behaviour, given the inadequate basis for Mr McBride’s opinion, which Dr Henderson simply restated, rather than evaluated.

61. Mr Chhabra submitted that the reports, taken either together or separately, did not form an adequate basis to require the sentencing judge to consider making a reduction in the sentence to reflect a reduction in moral culpability, let alone mandating one. The same considerations apply to the issue of the applicant being a suitable vehicle for general deterrence. The medical reports were flawed in their assumptions, and so also were their conclusions.

Consideration

62. Whilst it is preferable to avoid using phrases that approximate rather than specifically re-state the test of material contribution in De La Rosa, it is evident that his Honour was focusing on and applying the correct test when rejecting the argument that there should be a reduction in sentence to reflect mental health considerations for the applicant.

63. In this respect I agree with and adopt the remarks of Yehia J in RG v R [2025] NSWCCA 36 at [77]:

“The use of terminology such as “causal link” or “causal nexus” is prone to unnecessarily and unduly elevate the threshold that an offender must meet before the evidence of childhood sexual abuse can be taken into account to reduce moral culpability. In my view, a sentencing judge should not become preoccupied with the issue of “causation” as a technical matter. As observed by Hamill J in Luque v R [2017] NSWCCA 226 at [114], the sentencing task should not be approached in “an unduly technical or restrictive way”.”

64. Understood in context however, his Honour’s use of the terminology “relevant causal connection” and the way in which he articulated his analysis of the expert evidence in this aspect, does not fall into that area of potential error, as occurred in cases such as DB.

65. The sentencing judge here provided sound reasons for first querying and then putting aside some aspects of the conclusions in the expert reports. He did not “reject” the expertise, or the objective neuropsychological testing results. What he rejected was the suggestion that the identified impairments played the contributory role in the offending contended for by the applicant.

66. His Honour provided ample direct opportunity to senior counsel for the defendant to address his Honour’s concerns about the evaluation the experts made that the offending was “impulsive” or “relatively impulsive” as against the agreed facts of the offending which demonstrated separate, planned acts of organisation and participation over a number of months to a significant drug importation, and the movement of very large sums of money. The submissions made by senior counsel for the defendant at the sentence hearing did not, (and probably could not), remedy that fundamental tension.

67. His Honour was clearly entitled in those circumstances to conclude the mental health impairments of the applicant did not make a material contribution to the offending.

68. On the question of the role, if any, played by the applicant’s intellectual disability, his Honour was required to deal with a submission made by senior counsel for the applicant in the terms in which it was made. His Honour was not in any way suggesting that was the test to be applied under De La Rosa, or that this was the relevant test to apply in determining whether “moral culpability” was reduced. His Honour was simply rejecting the suggestion implicit in Mr Brady’s submission [5] that the evidence provided support for a conclusion that the applicant’s minor intellectual disability played a role in his offending, because he was “not in a position…to sit back and say, “What am I doing?””, as someone without his cognitive impairments could do. It was appropriate for his Honour to separately deal with that aspect of Mr Brady’s submissions.

Orders:

69. Accordingly I propose the following orders:

70. Grant leave to appeal on sentence.

71. Appeal dismissed.

72. YEHIA J: I have had the considerable advantage of reading the reasons for judgment of Lonergan J in draft. I agree with the orders proposed by her Honour and with her Honour’s reasons.

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Endnotes

Proceedings on Sentence at p 12-13, Appeal Book p 27-28.

Proceedings on Sentence at p 23, Appeal Book p 38.

R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58]-[59] (Smart AJ, Spigelman CJ and Simpson J agreeing).

Remarks on Sentence at p 33, Appeal Book p 75.

Tcpt, Proceedings on Sentence 16 November 2023, p 24(45-48).