Garaty v R

Court of Criminal Appeal (NSW)|2024-02-05|Before: Kirk JA, Wilson J, Ierace J

Solicitors: Jassy Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2021/260826 Decision under appeal Court or tribunal: District Court Citation: [2022] NSWDC 654 Date of Decision: 15 December 2022 Before: Fitzsimmons SC DCJ File Number(s): 2021/00260826

JUDGMENT

KIRK JA: I agree with Ierace J.
WILSON J: I also agree with Ierace J.
IERACE J: The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against an aggregate sentence that was imposed on her on 15 December 2022 by Fitzsimmons SC DCJ for the following two offences, of which she was convicted at trial: Count 1: That between about 4 August and 29 November 2020 she imported a border controlled drug (namely methamphetamine), contrary to s 307.3(1) of the Criminal Code Act 1995 (Cth) (count 1), and Count 2: That between about 18 November and 28 November 2020, she imported of a border controlled drug (a commercial quantity of methamphetamine) contrary to s 307.1(1) of the Criminal Code (count 2).

The facts of the offences

A document of asserted facts was tendered on sentencing by the Crown, which the applicant accepted to be accurate (the Asserted Facts). They are, relevantly, to the following effect.
In 2020, the applicant resided in a rented "granny flat" in Bankstown, for which she was sometimes in arrears in her rent. The landlord was Peter Nguyen. The applicant was in a romantic relationship with Obiekie, who lived in boarding house accommodation in Marion Street, Bankstown (the Marion Street premises), although each would occasionally stay at the other's residence. With respect to that relationship, the Asserted Facts stated: "… the Crown asserts that the evidence tendered indicated that [the applicant] was emotionally dependent on Obiekie, with florid expressions of love and submissiveness contained in letters to him … The Crown asserts that when considered as a whole the evidence indicates that, in general terms, Obiekie directed [the applicant] in relation to both importations."
By April 2020, the applicant knew that Obiekie had a business importing packages from overseas.

Count 1

In August 2020, Obiekie and the applicant imported by airfreight from South Africa an unknown quantity of Methamphetamine (ice) that was concealed within a Volkswagen brand headlight. The importation was discovered when police executed a search warrant on the Marion Street premises, following the importation that gave rise to count 2.
An Air Waybill that was generated in South Africa on 6 August 2020 named the consignee as Peter Nguyen, at the Marion Street address. That information had been provided by Obiekie. The consignment arrived in Sydney on 8 August 2020. The applicant engaged a customs agent, Trent Powell, to assist in clearing the consignment through customs, and emailed him the Air Waybill and a tax invoice for the headlight. Mr Powell told her that he would need the consignee's photographic identification to clear the consignment, to which the applicant responded by email that: "I am trying to get a hold of Peter now to get a copy of his ID, however its difficult when he is at work. I will email through his ID as soon as I receive it". The Asserted Facts state: "It can be inferred that [the applicant] did this with Obiekie's knowledge, if not his direction, as the evidence indicates that she reported progress back to him from time to time".
The applicant knew that Mr Nguyen had no involvement in the importation. On 14 August 2020, Mr Powell advised the applicant by email that: "We have cleared this without the ID, please email the ID … Once we receive your payment we will finalise with Customs".
The Asserted Facts continued: "On 15 August 2020, Obiekie paid $1,500 to Nguyen in payment of rent arrears for [the applicant] … He sent a copy of the bank transfer confirmation to Nguyen by MMS. Nguyen understood that Obiekie required a reference as a tenant and sought clarification from [him]. [The applicant] sent an SMS to Nguyen, requesting a photo of his licence, under the pretence that it was required for legitimate purposes. After several attempts at sending it by email, Nguyen sent her a screenshot of his digital licence via MMS on that same day. On 16 August 2020, a copy of the licence was saved on Obiekie's A5 phone."
The consignment was delivered to the Marion Street premises at a time between 15 and 17 August 2020. The headlights were found in the Marion Street premises during a search by police on 29 November 2020. A trace swab of the interior cavity of one of the headlights tested positive for the presence of ice. By inference, the jury found that at least one of the headlights was used in August 2020 to conceal and import an unknown quantity of ice. The Asserted Facts state: "The Crown case at trial was that the acts of importation engaged in by [the applicant] were: a. She received instructions from Obiekie in relation to the importation. b. She liaised with Trent Powell, at first by telephone and then by email, in order that he might attend to the clearance of the VW consignment through Customs. c. She arranged, by text and email, to receive Peter Nguyen's photographic identification (being a screenshot of his NSW driver's licence) to facilitate the clearance of the VW consignment after Trent Powell advised that the photographic identification was needed. In doing so, she engaged in deception with Mr Nguyen in that she perpetuated the false narrative that Obiekie needed a reference from Mr Nguyen with photographic identification, to assist in obtaining rental accommodation. She continued this false narrative with Mr Powell, telling him that it was difficult to obtain Mr Nguyen's identification when he was at work. She also provided a copy of Mr Nguyen's licence to Obiekie."

Count 2

Prior to 11 November 2020, Obiekie arranged to import from South Africa a quantity of ice secreted inside three BMW brand dashboards. An Air Waybill for the dashboards that was generated on that date named the consignee as Mr Nguyen, at the Marion Street address. In about the preceding six weeks, Obiekie and/or the applicant had transferred at least about AU$62,113.04 (in South African Rand) to a person in South Africa, as pre-payments for the importation. The Asserted Facts state: "… prior to 11 November 2020, Obiekie provided the consignee information to the consignor or a person in contact with him, which included his own residential address and one of the phone numbers associated with [Obiekie's] phone. He used the false name 'Peter Nguyen' to conceal his involvement."
The consignment arrived in Sydney on 16 November 2020. The applicant re-engaged Mr Powell to assist in clearing the consignment through customs. The Crown asserted that "this was done with Obiekie's knowledge, if not at his direction". On the morning of 18 November, after a 20-minute conversation with Obiekie, the applicant sent an email to Mr Powell, that she had previously sent to Obiekie in draft form, in which she stated: "You helped me sort out a delivery from overseas to be cleared back around July/ August this year, and I'm hoping you can please help me with another one. Peter [Nguyen] is up north at the moment and wants me to pick up some more of his car parts that arrived yesterday. Please find attached the AirWay Bill [sic], 3x Invoices and Peter's ID for the goods needing clearance. If anything else is needed please let me know."
Mr Powell replied the same day, attaching an invoice for customs clearance and advising that the consignment was still subject to a border security hold. He and the applicant exchanged emails about the meaning of a border security hold. On 20 November 2020, the applicant emailed Mr Powell advising that the invoice had been paid and asking him to "let [Customs] know I have a very busy weekend ahead of me and could they Hurry it up a little please". Later that day, she sent him a further email, asking if there was a way that she could "monitor the status in the Customs system". On 24 November, she asked Mr Powell: "Is it normal for clearance to be taking this long?? Also in regards to storage fees, are they payable if the item is being stored longer than expected due to customs hold up??"
On the morning of 27 November 2020, Mr Powell advised the applicant that the consignment had cleared customs and was ready for collection from the Matraville depot of Menzies Aviation (Menzies), a cargo handling company. The same day, Australian Border Force officers intercepted the consignment and discovered that each dashboard contained a substance that tested positive for ice. That afternoon, the applicant contacted Menzies and asked if the consignment could be collected. A short time later, she and Obiekie attended Menzies in their car. She was advised by a Menzies staff member that she needed a letter of authority from the consignee. The applicant and Obiekie then left.
Overnight, the applicant drafted an email that purported to be from Mr Nguyen giving authority to her to collect the assignment. It was checked by Obiekie before she sent it to Menzies, in relation to which the Asserted Facts indicated: "The Crown asserts that the sending of the draft with the question by [the applicant] indicates that she was seeking Obiekie's approval of the draft email to [Menzies]."
The following morning, the applicant and Obiekie attended Menzies to collect the assignment and were arrested. The ice was found to weigh 2.418 kg and have a purity of 68.7 per cent, representing a total pure weight of 1.661 kg, which is more than two times the commercial quantity.
The Asserted Facts stated: "The Crown case at trial was that the acts of importation engaged in by [the applicant] were: a. She received instructions from Obiekie in relation to the importation, and reported back to him in terms of progress. b. She participated in at least some money transfers to 'Anadebe' in South Africa, using a false identity. c. She liaised with Trent Powell, by email, in order that he might attend to the clearance of the BMW consignment through Customs. d. She arranged for the payment of the St George Freight invoice, and sent a copy of the receipt to Mr Powell to ensure clearance of the BMW consignment. e. She perpetuated the use of Mr Nguyen's identity to facilitate the clearance of the BMW consignment, including providing his photographic identification. She continued the false narrative first used with Mr Powell in relation to the VW consignment."
The applicant was not charged with an offence until 28 October 2021. She was granted bail, which was withdrawn on the date of the jury's verdict, on 5 September 2022.

The sentence proceedings

The sentence hearing occurred on 2 December 2022. The sentence was handed down on 15 December 2022, which was nine days after the applicant's 46th birthday. She had prior convictions for taking a prohibited plant or drug into a place of detention in December 2017, for which she was fined, and a low range PCA in January 2018, for which she was fined and disqualified from driving for 6 months. For an offence of driving with an illicit drug in her blood, committed in July 2019, she received a conditional release order for a period of 6 months, without a conviction being recorded.
A Sentencing Assessment Report (SAR) and reports by a clinical and forensic psychologist (Dr Emily Kwok) dated 31 October 2022 and a forensic psychiatrist (Dr Richard Furst) dated 19 November 2022 were tendered at the sentence hearing.
The applicant's history, as related in those three reports, was to the following effect.
The applicant has one sibling, a younger sister. She has no memory of her life before the age of 12 or 13 years. She recalled her mother was "a very cruel person" who was given to physical punishment such as "a belting". Her parents divorced when she was aged 18. She was bullied at school but could not recall why. She obtained her Higher School Certificate and had an excellent employment record from that time, until about late 2021.
The applicant commenced a relationship when aged 14 and moved in with her partner when aged 19. When she was aged 25, they had a son. They divorced when she was aged 29, after she discovered that her partner had been cheating on her. Initially her son lived with her, but when he was 16 years old, he moved in with his father. Her mother died in 2018, in circumstances that led to the applicant being shunned thereafter by her sister and her son.
The applicant met Obiekie in 2019 and reported that after about six months or a year he became aggressive, emotionally abusive, and occasionally physically abusive, including pushing and choking her. He became jealous of her meeting with friends and controlling of her behaviour, as a result of which she lost all her friendships, so that by the time of her offences, she had no family support or friendships outside Obiekie. She told Dr Kwok of one particular incident: "… [The applicant] claimed [Obiekie] became physically abusive at the beginning of 2020 where he allegedly hit her, pushed her around, shook her for no reason, and tried to choke her. [The applicant] stated that she became 'a bit scared' of [Obiekie]. Notwithstanding, they got engaged and were planning to get married. Before their marriage, [the applicant] reportedly learnt from her friends that [Obiekie] had wanted to cheat on her."
The applicant said that she had smoked cannabis since the age of 14 years, except when she was pregnant and breastfeeding, and was using ice "on a weekly basis" at the time of her offending (the SAR).
As to her mental health, the applicant said that for as long as she could remember, she had been depressed. She reported that for a period of three to four years, from the age of about 16, she would self-harm by cutting herself, twice weekly, "in order to gain emotional relief and to stop herself from crying". She attempted suicide shortly after finishing High School, which was around the time that her parents divorced. She recalled that she took herself to her general practitioner and "attended counselling for a few months, and also saw psychiatrists, but she did not find them helpful". She had further counselling with a psychologist following the death of her mother. She attempted suicide again in 2022 by drinking floor cleaning fluid, while on bail, which led to her first admission to hospital for mental health reasons.
Both Dr Kwok and Dr Furst diagnosed the applicant as having a major depressive disorder, although Dr Furst considered there were also underlying borderline personality traits. He also diagnosed her as having a substance use disorder. As to the applicant's absence of any memory of her childhood, Dr Furst said: "Her report of having no memory [of] her childhood up to the age of 13 years, coupled with previous protracted self-harming behaviours, borderline personality structure, subsequent depression, anxiety and addiction issues are all highly suggestible of childhood trauma/sexual abuse victimisation, making that the most likely reason for her psychopathology and adjustment difficulties in her adolescence and adult years."
Following her loss of employment in late 2021, the applicant became homeless, until she secured public housing in about August 2022. At the time of her sentence, she still did not have any family support. She had commenced a new relationship.
As to the applicant's physical health, she has two ongoing conditions. She has been diagnosed with, and is being treated for, an underactive thyroid. In 2008, when she was aged about 32, she was diagnosed with Systemic Lupus Erythematosus (SLE), which is commonly known as Lupus. Dr Furst reported that its effects included arthritis, especially in her fingers, knees and ankles, and chronic pain: "She is able to walk, but struggles with stairs. [The applicant] has been hospitalised on about three occasions [in] the last five years when her pain and swelling is excessive, especially in her feet and ankles."
Dr Furst considered that the applicant's incarceration would be more onerous: "[The applicant] is likely to struggle emotionally in custody as a consequence of her borderline personality traits, depressive tendencies, SLE, arthritis/[pain] and lack of personal fortitude. She would likely find it more difficult to cope with violence, threats and/or intimidation from other inmates because of her mental and physical conditions and her general frailty, with likelihood that a custodial sentence would exacerbate her mental health problems and her physical problems. Accordingly, I am of the opinion that a custodial sentence would be more onerous for [the applicant] than the average offender."
Her explanation in relation to the offences was that she had collected a package on behalf of her partner, oblivious to the fact that it contained illicit drugs. The applicant: "… admitted to believing that there may have been something 'dodgy' involved, due to [Obiekie's] aggressive response when questioned, however she believed he was importing artefacts from his homeland without declaring them."
The SAR reported that the applicant acknowledged the impact of her offending on the community, particularly having been confronted with the long-term effects of drug abuse while in custody.
The applicant was assessed by the author of the SAR as having a "medium" risk of reoffending, according to the Level of service Inventory-Revised (the LSI-R). Dr Kwok assessed her as having "a low risk of reoffending".
As to any relationship between the applicant's mental condition and her offending behaviour, Dr Kwok said: "[The applicant's] depression is longstanding and it is likely that she was suffering from the condition at the time of the alleged offence. Her ability to engage in rational thinking was likely also affected by substance use and her feelings of fear within what she alleged was a physically and emotionally abusive relationship. … [The applicant's offences are] best understood in the context of the abusive relationship that she was in with [Obiekie] at the time of offending, in addition to her poor coping skills and lack of access to external support. In particular, she alleged that [Obiekie] was physically and emotionally abusive towards her and this had caused her to fear him. l did not get a sense that [the applicant] was attempting to use this to justify her behaviours. On the contrary, [the applicant] acknowledged that she had helped [Obiekie] obtain the packages and she demonstrated an understanding of the illegality and severity of the offence. However, on the basis of [the applicant's] description of the abusive nature of her relationship with [Obiekie], in conjunction with her vulnerability from depression, it is unlikely that she had possessed a similar level of insight and reasoning ability at the time the offence was committed. By [the applicant's] account, her intention at the time was to 'keep [Obiekie] happy' and prevent him from hurting her."

The parties' submissions on sentence

In written submissions, as to the respective roles of the offenders, the Crown stated: "The Crown submits that it is important to note that at all times, although clearly exercising an independent mind to each other (in that neither was acting out of a lack of free will), [the applicant] was subordinate to Obiekie in the importations in that he was providing instructions to her, and she reporting to him. Obiekie was clearly the primary liaison with the South African contact that was providing the drugs concealed in the car parts packaging, and responsible for most if not all of the money being remitted to South Africa to pay for the goods. Further, it is clear that Obiekie was the person responsible for the sale of the drugs when they arrived in Australia. It is submitted that [the applicant's] role in being the person liaised with the freight forwarder in Australia (in respect of both importations) and who was to accept delivery of the consignment left her the most exposed to the attention of law enforcement authorities. This is consistent with [the applicant] being of a lower rank in terms of responsibility compared with Obiekie. It appears likely that she was not entirely trusted by Obiekie with physical possession of the second (BMW) consignment as he was present for the attempted collections on both 27 and 28 November 2020. That said, there is some evidence that she was trusted to remit some of the money in relation to the second (BMW) importation."
The Crown accepted that there was no evidence that the applicant was aware of the quantity of the drug being imported. As to motive, the Crown submitted: "The Crown is not able to point to specific evidence of financial gain had or to be had by [the applicant] in respect of the importations. Part of her motivation does appear to be her romantic attachment to Obiekie. The Crown reserves its right to make further submissions in this regard upon receipt of any subjective material on her behalf."
The defence agreed with the Crown's characterisation of the offenders' respective roles and that the applicant's motive was her "romantic attachment" to Obiekie. The defence submitted that the sentencing court would accept the applicant's accounts in the forensic reports that Obiekie would become physically and emotionally abusive and controlling if she did not comply with his requests which reduced her moral culpability. It was further submitted that her mental and physical health diagnoses rendered her more vulnerable, reducing her moral culpability: "… The consequence of these illnesses led her to drug use to relieve the physical and emotional symptoms, and it was in the context of this dysfunctional lifestyle, where she was undoubtedly vulnerable to be taken advantage of, and where she gave little or no rational thought to the possible serious consequences of her criminal offending, that she was cajoled into assisting her co-offender in committing these offences. In that regard the opinion of Dr Kwok … is particularly noteworthy where she suggests [the applicant] now has an understanding of the illegality and severity of the offence, but it is 'unlikely that she had possessed a similar level of insight and reasoning ability at the time the offence was committed'. Accordingly it is submitted , as Dr Furst suggests … there is a nexus between her offending and her mental health condition, and the court would be mindful of the principles in DPP v De La Rosa [2010] NSWCCA 194 in concluding that [the applicant's] moral culpability is reduced and the need to denounce the crime may also be reduced, as well as understanding that a custodial sentence may weigh more heavily upon [the applicant]. Indeed Dr Furst opines specifically … that a custodial sentence would be more onerous for [the applicant] than the average offender'." (emphases added)
The submission that the applicant's moral culpability was reduced, in part because of her mental health issues, was underscored in oral submissions on sentence: "One of the factors that the Crown appears fairly conceded is whether or not in terms of the financial aspect of the sentencing process, there was any motivation for financial gain on behalf of [the applicant] … The Crown fairly concedes that there appears to be motivation - more of a romantic attachment to [Obiekie]. Your Honour has seen in expansion of that concession by the Crown, the reports that have been tendered on behalf of [the applicant] from Dr Kwok and Dr Furst, which go into some significant detail about her reasons for getting involved in … attempting to assist him getting this package through customs. We of course ask your Honour to accept that evidence. If your Honour were to do so I know my friend says she's not just a mere courier, but it's our submission that her moral culpability would be significantly reduced as a result of not only when you combine those aspects of her involvement together with her mental health issues … I think at the end of the day I've submitted that her state of mind would've been such that she wouldn't have been thinking rationally and she obviously had no real conception of the consequences that she was getting herself into because of the mental health issues that she had at the time. When your Honour understands that mental state that she was in, both emotionally with her attachment to [Obiekie] and her serious mental health issues, which have been addressed in the reports, it's our submission that her moral culpability places her very much at the lowest end of the scale. … She was just devoted to him and she was using drugs at the same time. That's obviously not an excuse, but that fed into her depression and her whole mental state of not really being in a state of making rational decisions or knowing the consequences or understanding the consequences of her behaviour." (emphases added)

The remarks on sentence

The structure of the sentencing judgment was such that it was divided into discrete sections for each offender which, of necessity, resulted in some duplication of material. The section concerning the applicant commenced with a summary of the asserted facts with which, the sentencing judge noted, the applicant had agreed. His Honour comprehensively summarised the reports of Dr Kwok and Dr Furst, the SAR, and the parties' submissions, acknowledging the essence of the written submissions extracted at [39]-[41] above. As to oral submissions, the sentencing judge said, at [153]: "In oral submissions, the Crown further expanded on its submissions regarding the respective roles of [the applicant] and Obiekie, including their respective involvement in the financial transfers. The Crown further addressed the objective seriousness arising from [the applicant's] involvement in the importations. The Crown noted that [the applicant] was the person most exposed and therefore was generally lower in the organisational structure of the importation. However, the Crown contended that [the applicant] was still engaged in the ongoing importation arising from both counts, and accordingly her criminality would be considered higher than a person merely collecting a package. This included being involved in the transfer of funds. Further, in respect [of Count 2], [the applicant] was engaged with the customs clearance personnel, and those at Menzies in the collection of the package. The Crown contended that [the applicant] was more deeply involved than a 'courier'."
In summarising the defence's submissions, the sentencing judge expressly acknowledged the applicant's submission in respect of her moral culpability and an application of the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194: "231 [The applicant] contended that on any objective view of the evidence adduced at trial she was 'subordinate' to Obiekie in the importation of both consignments. [The applicant] adopted the Crown's submission that [the applicant] was 'at a lower rank in terms of responsibility compared with Obiekie'. [The applicant] noted the Crown's concession that it was unable to point to any specific evidence that [the applicant] was motivated by financial gain but rather, the evidence appeared to suggest that she was motivated by her romantic attachment to Obiekie. [The applicant] relied upon evidence adduced at trial in this respect. It was contended that [the applicant's] moral culpability for the crimes was reduced by reason of the influence of Obiekie in the commission of the offences. 232 [The applicant] noted the diagnosis of a major depressive disorder which was long-standing, being a condition from which she was likely suffering at the time of commission of the offences. [The applicant] highlighted the various matters contained in the expert reports including the likely lack of insight. Given the psychological condition the Court was reminded of the principles in DPP v De La Rosa (2010) NSWCCA 194 when contending that the Court would find [the applicant's] moral culpability was reduced and that the need to denounce the crime may also be reduced by reference to that condition. Further, the Court would consider that a custodial sentence would weigh more heavily upon [the applicant] given her condition."
Under the heading "Consideration", his Honour made findings according to certain sub-sections of s 16A(2) of Pt 1B of the Crimes Act 1914 (Cth). Under the sub-heading "The nature and circumstances of the offence: s 16A(2)(a)", the sentencing judge made the following findings in relation to the applicant's vulnerability: "238 I accept the Crown's submission that [the applicant] was most exposed to the attention of law enforcement. I find that [the applicant] played a subordinate role to Obiekie. I accept that her involvement in the importations was inextricably caught up in her vulnerability and emotional attachment to her co-offender and was generally acting in accordance with his directions and requests. 239 That said, [the applicant] must be sentenced on the basis of the jury verdicts that she: (a) engaged in acts in the importation of the substances; (b) knew that there was a substance in the consignments; (c) was aware of a substantial risk that the substances were border controlled drugs; and (d) having regard to the circumstances known to [the applicant], it was unjustifiable for her to take that risk."
As to specific deterrence (s 16A(2)(j) of the Crimes Act), the sentencing judge said that there was a need for specific deterrence, but it was "not [as] significant as general deterrence. It is apparent that [the applicant's] conduct was inextricably entwined in her relationship with Obiekie". Under the sub-heading "General deterrence: s 16A(2)(ja)", his Honour said: "245 The Crown contends that 'the principles of general deterrence and denunciation are fundamental considerations when sentencing an offender for a drug-related offence, and that such considerations will generally outweigh subjective circumstances, particularly in the determination of the total sentence' (Parris [1] at [35]). In particular, the Crown relied upon the judgment of the plurality in Wong [2] at [64] set out above. 246 It is necessary to approach this submission with some caution given these comments were qualified, the plurality noting that such observations were not in an attempt to formulate applicable principles, or to set out an exhaustive statement of the relevant factors in sentencing. As observed by the Court of Appeal in Totaan, [3] s 16A(2) provides a non-exhaustive list of matters the Court is required to take into account in determining the appropriate sentence. Deterrence (s 16A(2)(j)) is just one of the matters the Court must take into account. As the Court observed, s 16A does not create a hierarchy of matters to be considered. 247 In Wong the High Court was emphasising the importance of deterrence in the sentencing process for drug importation matters. The sentence must reflect general deterrence from being involved in the importation of prohibited drugs, as well as the individual deterrence relating to [the applicant]. In determining the appropriate sentence, I have taken into account the particular importance of deterrence, consistent with the observations of the plurality in Wong."
Under the sub-heading "Prospects of rehabilitation: s 16A(2)(n)", the sentencing judge noted the applicant's intention to address her issues identified in the reports of Dr Kwok and Dr Furst, and Dr Kwok's opinion that there was a low risk of her reoffending.
Under the sub-heading "Character antecedents and background of the offender: s 16A(2)(m)", the sentencing judge referred to the applicant's traumatic childhood and her family estrangement as portrayed in the two forensic reports, and continued: "250 …The reports attest to the fact that [the applicant's] condition at the time of the offending was likely to have affected her ability to engage in rational thinking. 251 The diagnosis of the two medical experts is corroborated by the further agreed facts admitted in the trial … that [the applicant] was diagnosed with depression in 2015 and had reported to Police after arrest that she was taking medication for severe depression and anxiety. 252 There are clearly physical and psychological health issues which will be further addressed and treated on [the applicant's] release."

Ground 1: The learned sentencing judge failed to take into account in regard to general deterrence and denunciation:

a. the applicant's limited ability to think rationally, and

b. that she was acting at the direction of an abusive partner in committing the offences

In written submissions, the applicant referred to the passage extracted from the sentencing judgment at [46] above and submitted: "These remarks are exactly the same as what His Honour said about the operation of general deterrence for the co-offender (ROS 204-206). His Honour did not distinguish in any way the applicability of general deterrence to the applicant's case vis a vis the co-offender's case, nor the different need for denunciation. His Honour did not recount the effect on general deterrence and denunciation of applicant's limited ability to think rationally, nor the fact that she was acting at the direction of an abusive partner in committing the offences. It is submitted that both these matters significantly reduced the need for general deterrence and denunciation in this case, and that His Honour failed to take them into account in assessing the need for general deterrence in the matter. True though it is that His Honour had regard to these factors in other aspects of the sentence, including in considering the objective seriousness of the offence, given the importance of general deterrence in matters of this kind, it was important to recognise that the applicant was a poor, or at the very least, lesser, example to be held up general deterrence and denunciation purposes." (emphasis original)
The respondent replied that the sentencing judge accepted that the applicant was in an abusive relationship with Obiekie and that the only evidence of her motivation to commit the offences was her romantic attachment to him, as well as the reports and opinions of Dr Kwok and Dr Furst. Specifically, the sentencing judge accepted that the applicant's capacity to think rationally was limited and that she acted on the direction of an abusive partner.
As to whether those two facts were taken into account in respect of general deterrence and denunciation, the respondent submitted that the applicant had not expressly sought that they be applied to reduce general deterrence and denunciation, and therefore no error is disclosed.

Consideration

It is trite to observe that in DPP (Cth) v De La Rosa, McClellan CJ at CL, at [177], summarised common law principles as to how a finding that an offender has, or had, a relevant mental condition, is to be applied in a sentencing exercise. Essentially, his Honour said that if that condition contributed to the commission of the offence in a material way, their moral culpability may be reduced, so that there is a reduced need for the sentence to reflect considerations of denunciation and specific and general deterrence. In the case of specific deterrence, there may be no need for it to be reflected in the sentence at all. It may also have mitigatory implications for the offender's experience of custody. However, a mental condition that has adverse implications for the protection of the community, particularly an Antisocial Personality Disorder, may have an opposite effect on the sentence.
The applicant's counsel submitted for a finding of reduced moral culpability in both his written and oral submissions, as noted at [41] and [42] above. Counsel for the applicant particularly referred to Dr Kwok's opinion that the applicant's major depressive disorder, her drug use and her emotional dependence affected her ability to engage in rational thinking. The sentencing judge acknowledged this submission, as noted in the passage from the sentence judgment extracted at [44] above.
The real question is whether his Honour took the applicant's submission into account, since, surprisingly, there is no reference at all in the sentence judgment to a finding as to the level of the applicant's moral culpability. Although in his reasoning in respect of specific deterrence, the sentencing judge engaged with the applicant's relationship with Obiekie, there is no reference at all to the issue of whether general deterrence should be reduced, on any basis in the section dealing with general deterrence, extracted at [46] above. As noted in the applicant's submissions, that section is in the same terms as its counterpart in the section of the judgment concerning Obiekie, although the subjective circumstances of the two offenders were quite different.
Although there is not a separate section dealing with denunciation in the "Consideration" section of the judgment concerning the applicant, the passing reference that is made to that issue under the heading "General deterrence" suggests that his Honour's reasoning applied to that consideration as well.
An examination of the sentence judgment, in particular, the section under the heading "Consideration", does not disclose an engagement with the principles in DPP (Cth) v De La Rosa. The sentencing judge did refer to the applicant's issues that were identified in the forensic reports in relation to her rehabilitation and her mental state at the time, but not in a substantive fashion in the context of denunciation, specific or general deterrence or her conditions in custody. The only reference made to the applicant's mental condition was that, in relation to specific deterrence, her conduct was "inextricably entwined" in her relationship with Obiekie.
I would grant leave to appeal and uphold the appeal.
In my view, a lesser sentence is warranted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35], [42] per French CJ, Hayne, Bell and Keane JJ. Accordingly, there is no need to consider ground 2.

Re-sentence

In fixing the objective seriousness of the offences, I take into account the maximum penalty of the offences and the quantity involved in count 2, which is more than twice the minimum commercial quantity, and the applicant's integral role and persistence in attempting to secure possession of the ice involved in count 2. In particular, I have regard to the nature and circumstances of the offences, the extent to which the two offences comprise a course of conduct, the impact of count 1 and potential impact of count 2 on the community: ss 16A(2)(a), (c) and (e) of the Crimes Act. It is unnecessary to fix the objective seriousness of the offence on a scale and I decline to do so: DH v R [2022] NSWCCA 200 at [58]-[60]; R v Walker [2023] NSWCCA 219 at [56] - [59].
As to the applicant's subjective case, I read on re-sentence an affidavit of the applicant's solicitor, which annexes a further report by Dr Kwok, dated 19 January 2024. Dr Kwok took an additional history from the applicant, principally concerning her childhood, which she now was prepared to discuss. She disclosed a history of serious abuse at the hands of a trusted person outside the family, which occurred regularly for over a year. It is unnecessary to recount that history. She told Dr Kwok that her difficult relationship with her mother discouraged her from disclosing the abuse to her and that she had "blocked out much of my childhood [from my memory] in order to not think about the … abuse". The history confirms Dr Furst's hypothesis and is consistent with the applicant's development of a major depressive disorder and substance use disorder.
The applicant's moral culpability is reduced by the extent to which her offending behaviour was consequent to her vulnerability to Obiekie, because of her emotional dependency on him, arising from her psychological disorders and social isolation, and his violent, abusive, and controlling behaviour.
There is a need for the sentence to reflect specific deterrence because of the destabilising effect of her untreated continuing severe depressive disorder and substance use disorder, albeit minimally, in view of Dr Kwok's assessment of the low risk of the applicant reoffending. General deterrence would ordinarily loom large in the sentencing exercise for drug importation offences but is moderated in the circumstances of this case by the applicant's reduced moral culpability. Denunciation is similarly modified.
I would impose an aggregate term of imprisonment for 7 years, backdated to commence on 5 September 2022 and expiring on 4 September 2029, with a non-parole period of 3 years 9 months, expiring on 4 June 2026. The indicative sentences for counts 1 and 2 are imprisonment for 2 years and for 5 years 9 months respectively.

Orders

I propose the following orders: (1) Grant leave to appeal; (2) Allow the appeal; (3) Quash the sentence imposed in the District Court on 15 December 2022; (4) In lieu thereof, sentence the applicant to a term of imprisonment for 7 years, backdated to commence on 5 September 2022 and expiring on 4 September 2029, with a non-parole period of 3 years and 9 months, expiring on 4 June 2026.

Endnotes

Parris v R [2013] NSWCCA 5
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Totaan v R (2022) 365 FLR 69; [2022] NSWCCA 75 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2024

Crimes Act 1914(Cth)s 16A(2)

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