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Catchwords: CRIME — appeals — appeal against sentence — denial of procedural fairness — expert opinion of causal link between mental health disorders and offending — where evidence admitted without objection — where expert not cross-examined — whether Crown implicitly accepted that there should be a reduction of the applicant’s moral culpability — no breach of procedural fairness
CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — whether sentencing judge failed to take into account offender’s disadvantaged background — moral culpability — discussion of process to be undertaken when applying principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CRIME — appeals — appeal against sentence —ground of appeal based upon Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 — whether sentencing judge wrongly considered that family hardship needed to be “exceptional” before it could be taken into account — no error occasioned
SENTENCING — appeal against sentence — mere arithmetical error — where sentencing judge erred in fixing the commencement date of the non-parole period — where error corrected without a need for the Court to engage in a re-sentencing exercise

Legislation Cited: Crimes Act 1914 (Cth), ss 16A(2)(m), 16A(2)(p), 19AB
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code Act 1995 (Cth), ss 11.1(1), 11.2A(1), 307.1(1), 307.5(1)

Cases Cited: Abed v R [2025] NSWCCA 223
Ahmad v R (2023) 383 FLR 225; [2023] NSWCCA 294
Aiga v R [2024] NSWCCA 175
Anquetil v R [2025] NSWCCA 147
BAP v R [2024] NSWCCA 206
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
DG v R [2025] NSWCCA 137
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Diri v R [2019] NSWCCA 319
Greenyer v R [2016] NSWCCA 272
Hanania v R [2012] NSWCCA 220
Hong v R [2026] NSWCCA 64
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Isaac v R (2024) 384 FLR 431; [2024] NSWCCA 2
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Lazarus v R (2023) 380 FLR 228; [2023] NSWCCA 214
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Lloyd v R [2022] NSWCCA 18
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Nguyen v R [2025] NSWCCA 42
NK v R [2025] NSWCCA 73
R v Millwood [2012] NSWCCA 2
R v MJ [2023] NSWCCA 306
R v Nguyen; R v Pham [2010] NSWCCA 238
Refaieh v R [2018] NSWCCA 72
Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57; [2001] HCA 22
Smith v R [2024] NSWCCA 59
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Stewart v R [2012] NSWCCA 183
TH v R [2025] NSWCCA 121
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
Weir v R [2011] NSWCCA 123
Whereat v Rex [2026] NSWCCA 73
Wong v R; Leung v R (2001) 207 CLR 584; [2001] HCA 64
YZ v R (2025) 398 FLR 424; [2025] NSWCCA 165
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Category: Principal judgment

Parties: Alexander Issam Jameel (Applicant)
Rex (Respondent)

Representation: Counsel:
K Hogan (Applicant)
A Chhabra (Respondent)
Solicitors:
Houston Defence Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2023/00137297

Publication restriction: Nil

HEADNOTE

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

The applicant was sentenced in the District Court of New South Wales on 11 December 2024, following pleas of guilty to one count of attempting to possess a commercial quantity of a border controlled drug and one count of importing a commercial quantity of a border controlled drug. The applicant was sentenced to a term of imprisonment of 7 years with a non-parole period of 4 years. The term of imprisonment was ordered to commence on 9 December 2024, and the non-parole period was ordered to commence on 11 December 2024.

The applicant sought leave to appeal the sentence imposed on him on the following grounds:

1. The sentencing judge denied the applicant procedural fairness by rejecting the opinion of Dr Donald Rowe, in circumstances where the opinion was unchallenged by the Crown and the intended rejection of his opinion was not raised with counsel such that there was an opportunity to address it;
2. The sentencing judge failed to take into account the applicant’s disadvantaged background;
3. The sentencing judge erred by failing to indicate how he took into account hardship to the applicant’s family including his now young child, or alternatively, applied an incorrect principle to the consideration of the matter, namely, that he erred in accordance with Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75; and
4. The sentencing judge erred in setting the commencement date for the non-parole period.

The Court held (Weinstein J, Kirk JA and Lonergan J agreeing), granting leave to appeal, allowing the appeal in respect of Ground 4 but otherwise dismissing the appeal:

As to Ground 1

1. The sentencing judge’s finding that the applicant’s moral culpability was not reduced by reason of his mental health was not a departure from an agreed position between the parties: at [82]. The sentencing judge was presented with two opposing submissions with respect to the applicant’s mental health and its effect on his moral culpability, and in those circumstances his Honour was entitled to reject Dr Rowe’s opinion as to the connection between the applicant’s mental health and his offending and find no reduction in moral culpability: at [83].
2. In circumstances where it was plainly open for the sentencing judge to find that the offending was sustained and motivated by financial gain, the applicant’s counsel at sentence should have been alive to the possibility that the sentencing judge would reject Dr Rowe’s opinion that the applicant’s mental health was causally connected to his offending, and consequently decline to find a reduction in moral culpability on the basis of the applicant’s mental health. There were avenues available to the applicant’s counsel to address this possibility. His choice not to pursue those avenues was a missed opportunity to persuade the sentencing judge that the applicant’s moral culpability should be reduced by reason of his mental health. A missed opportunity is to be distinguished from procedural unfairness and practical injustice: at [84].

Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6; Weir v R [2011] NSWCCA 123; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12; Nguyen v R [2025] NSWCCA 42 cited.

As to Ground 2

3. The sentencing judge accepted that the principles in Bugmy v T**he Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) were enlivened and that the applicant’s background of disadvantage was relevant to the sentencing task. His Honour found that the applicant’s background did not reduce his moral culpability but recognised that a background of disadvantage may be “taken into account in other ways”. Taking into account the maximum penalties for the offences, the circumstances of the offending and the remarks on sentence, the sentencing judge did take the applicant’s background of disadvantage into account: at [95].

Bugmy v T**he Queen (2013) 249 CLR 571; [2013] HCA 37; Hanania v R [2012] NSWCCA 220 considered.

4. While no error was occasioned in this case, care should be taken to avoid reasoning that assumes that a “causal link” is required to enliven the Bugmy principles, or that the Bugmy principles are not applicable to crimes involving planning: at [98]. The question at the heart of the Bugmy principles is this: in all the circumstances, can it be accepted that the offender in question bears the same moral responsibility for their offending as a person who has had a privileged or conventional upbringing?

NK v R [2025] NSWCCA 73; DG v R [2025] NSWCCA 137; YZ v R (2025) 398 FLR 424; [2025] NSWCCA 165; Abed v R [2025] NSWCCA 223; Whereat v Rex [2026] NSWCCA 73; R v Millwood [2012] NSWCCA 2; R v MJ [2023] NSWCCA 306 considered.

As to Ground 3

5. Nothing in the remarks on sentence supports the inference that the sentencing judge considered that family hardship needed to be “exceptional” before it could be taken into account. His Honour expressly acknowledged that he had regard to the material before him, but noted that it could not displace other sentencing considerations such as general deterrence: at [118]. It was open to the sentencing judge, having taken the factor into account, to find that family hardship did not displace the significant weight to be attributed to general deterrence for drug-importation offences: at [121].

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75; Lazarus v R (2023) 380 FLR 228; [2023] NSWCCA 214 applied; R v Nguyen; R v Pham [2010] NSWCCA 238; Wong v R; Leung v R (2001) 207 CLR 584; [2001] HCA 64 cited.

Ahmad v R (2023) 383 FLR 225; [2023] NSWCCA 294 distinguished.

As to Ground 4

6. It was common ground between the parties that the non-parole period should have commenced on 9 December 2024 rather than 11 December 2024. This was a case of a mere arithmetical error which could be corrected without the Court being required to engage in a re-sentencing exercise: at [126].

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255; Greenyer v R [2016] NSWCCA 272; Refaieh v R [2018] NSWCCA 72; Diri v R [2019] NSWCCA 319 applied, Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 cited.

JUDGMENT

1. KIRK JA: I agree with Weinstein J.

2. LONERGAN J: I agree with Weinstein J.

3. WEINSTEIN J: The applicant, Alexander Issam Jameel, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed on him by Everson SC DCJ (“the sentencing judge”) in the District Court of New South Wales on 11 December 2024.

4. The applicant was sentenced following pleas of guilty to one count of attempting to possess a commercial quantity of a border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth) (Sequence 4) and one count of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) with s 11.2A(1) of the Criminal Code (Sequence 5). Each offence carries a maximum penalty of life imprisonment.

5. In respect of Sequence 4, the sentencing judge imposed a sentence of imprisonment of 4 years commencing on 9 December 2024 and expiring on 8 December 2028. In respect of Sequence 5, the sentencing judge imposed a sentence of imprisonment of 6 years commencing on 11 December 2025 and expiring on 10 December 2031. The accumulated sentence was a term of imprisonment of 7 years and 2 days, commencing on 9 December 2024 and expiring on 10 December 2031. I observe that the sentencing judge said that the overall head sentence was 7 years with a non-parole period of 4 years. His Honour fixed a single non-parole period of 4 years pursuant to s 19AB of the Crimes Act 1914 (Cth). The non-parole period was specified as commencing on 11 December 2024 and expiring on 10 December 2028.

6. It was common ground between the parties that the non-parole period should have commenced on the commencement date of the sentence for sequence 4, being 9 December 2024. It was agreed that if the appeal was allowed, the correction should occur on resentence. If the appeal was dismissed, it was accepted that this Court could remedy the error without needing to undertake the sentencing discretion afresh, as it was an error of arithmetic only. I will return to this issue in due course.

7. The applicant advanced the following three grounds of appeal:

8. The sentencing judge denied the applicant procedural fairness by rejecting the opinion of Dr Donald Rowe, in circumstances where the opinion was unchallenged by the Crown and the intended rejection of his opinion was not raised with counsel such that there was an opportunity to address it.

9. As a result of the above in ground one, or in any event, the sentencing judge failed to take into account the applicant’s disadvantaged background.

10. The sentencing judge erred by failing to indicate how he took into account hardship to the applicant’s family including his now young child, or alternatively, applied an incorrect principle to the consideration of the matter, namely, that he erred in accordance with Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75.

11. The words underlined in appeal ground 2 were added to the original ground by the applicant during the hearing. The Crown had no issue with the amendment to ground 2 and indicated that it could meet the appeal ground as amended.

12. I have concluded that the appeal ought to be dismissed for the following reasons.

The sentence proceedings

10. The sentencing proceedings took place in a busy list at Penrith. The sentencing judge’s remarks on sentence (“ROS”) were delivered ex tempore on the same day. Some documents provided to the sentencing judge arrived late and contrary to the relevant Practice Note. Oral submissions made by counsel for the applicant and the Crown were very brief and concentrated on the availability of an Intensive Correction Order (“ICO”), appropriate discounts (on behalf of both parties) and hardship to family members (on behalf of the applicant). Both the applicant and the Crown relied on their respective written submissions.

11. This Court has acknowledged on many occasions that ex tempore judgments should be considered with a degree of latitude, which I understand to be a margin of tolerance in the way that a sentence is structured or how various well-known principles operate, or are abbreviated, in a given case: see TH v R [2025] NSWCCA 121 at [75] per Yehia J; BAP v R [2024] NSWCCA 206 at [89] per Yehia J (Wright and Cavanagh JJ agreeing); and Aiga v R [2024] NSWCCA 175 at [67] per N Adams J (Ierace and Sweeney JJ agreeing).

12. As McCallum JA said in Lloyd v R [2022] NSWCCA 18 at [11]:-

“The judge gave his reasons ex tempore (that is, orally, immediately upon the conclusion of the sentence hearing). The pressures of a court as busy as the District Court of New South Wales require judges to do so when they can and it is commendable when they do. As noted by the Crown, it is appropriate to keep the fact that reasons were given ex tempore in mind when assessing their adequacy: Currie v R [2013] NSWCCA 267 at [49]-[51] (Johnson J) (Currie). However, that is not to say that ex tempore decisions attract a different standard of review; only that the appellate court should understand that shortcomings such as poor structure, unclear expression or failure to refer to an applicable provision or principle may find their explanation in the degree of difficulty that attends the task of mustering one’s thoughts to present an oral judgment in open court. As Simpson J explained in Rotner v R [2011] NSWCCA 207 at [57] (cited in Currie at [50]), a sentencing judgment delivered ex tempore may ‘lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing.’”

13. It is within that context that I approach the sentencing judge’s ROS.

Factual background

14. The applicant was sentenced on the basis of an agreed statement of facts, tendered as part of the Crown bundle on sentence. With respect to Sequence 5, the agreed facts of the offending may be summarised as follows.

15. On 2 April 2023, the Australian Border Force detected 1,570.52 grams of pure methamphetamine concealed within a consignment. The consignee details were: “Mr James Fifer, XX Blenheim Ave, Rooty Hill, NSW 2766”. The contact number was XXXXXXX789.

16. On 12 April 2023, the Australian Border Force detected 663 grams of pure methamphetamine concealed within a consignment. The methamphetamine was contained in capsules in a sealed “Webber Naturals” branded supplement bottle. The consignee details were: “Mr Samuel Yousif, XX Karakum Glade, Plumpton NSW 2761.” The contact number was XXXXXXX558.

17. The applicant’s phone was seized upon his arrest on 29 April 2023, following the offending in Sequence 4. An examination of the applicant’s phone revealed chats on the encrypted applications “Threema” and “Signal” between the applicant and unknown persons relating to the two consignments. During the course of these chats the applicant provided the addresses where the packages could be delivered, provided updates on the tracking of the packages, and discussed methods for concealing the drugs in the Webber Naturals bottles. The following exchanges were extracted as part of the agreed facts:-

“19 February 2023

JAMEEL: Name James fifer

Street XX Blenheim Ave

Suburb Rooty Hill

State NSW

Post code 2766

Country Australia

Phone: XXXXXXX789

Email xxx@gmail.com

MARLO NEW: Thank you fam

9 – 31 March 2023

TONY: Want to send me few more addy when u can bro

JAMEEL: U got that one in rooty hill right?

TONY: Yeah, Let’s say 3 more bro

…

JAMEEL: Tony Palmera XXXXXXX899

Street: XX Shinnick Drive Suburb: Oakhurst State: NSW

Post code : 2761 Australia

Samuel Yousif XXXXXXX588

XX Karakum Glade Plumpton NSW 2761 Australia,

Albert Ismael XXXXXXX678, XX Hartington Street, Rooty

Hill NSW 2766 Australia

Joe Zammit XXXXXXX556 XX Willis St, Rooty Hill NSW

2766 Australia.

…

TONY: Hey fam can you show me updates on the tracking, all

the tracking.

JAMEEL: *Sends screenshots of the tracking details of the

consignments*

TONY: *Sends photos of packaging label reading James Fifer

XX Blenheim Avenue, Rooty Hill*

JAMEEL: *Sent a video opening a box containing 'Webber Natural'

branded capsules*

So 120 caps according to the bottle, so for a key, ull need about 8.3 bottles or 9 bottles let say.

TONY: Ty so about 1110 capsules

JAMEEL: Exactly yeah

TONY: Ok fam let's do this, I'm gonna send it in HH bro, 36 Zip all pow into these capsules.

JAMEEL: Ok u got someone who'll cap them? Thats a lot of work.

TONY: Yea fam gonna do it myself and bring meech ass too.

JAMEEL: It's worth it but 100% worth it.

18. The agreed facts with respect to the Sequence 4 offending may be summarised as follows.

19. On 17 April 2023, the Australian Border Force located methamphetamine with a pure weight of 936.1 grams concealed within two consignments. The consignee details for both consignments were: “Mr Peter Roshdy, XX Blenheim Avenue, Rooty Hill NSW 2766”.

20. On 27 April 2023, NSW Police conducted a controlled delivery of the consignments at the Rooty Hill address, which at that time was a vacant property listed for lease. There was no answer at the property, and an attempted delivery slip was left in the screen door for “Peter Roshdy” to collect the two packages from the Mount Druitt Post Office.

21. At about 10:30am, the applicant attended the Rooty Hill address and collected the delivery slip. A short time later, the applicant entered the Mount Druitt Post Office located in Mount Druitt Westfield. He left the premises without speaking to staff.

22. At about 12:50pm on 29 April 2023, the applicant again attended Mount Druitt Westfield along with Ms Julia Ayoub. Ms Ayoub entered the post office while the applicant entered the nearby Coles. A short time later, the applicant joined Ms Ayoub inside the post office, pushing a Coles shopping trolley. A post office staff member confirmed Ms Ayoub’s identity and authority to collect the packages. The applicant then loaded the packages into the shopping trolley and pushed the trolley out of the post office.

23. Both the applicant and Ms Ayoub were arrested by police as they were leaving the post office. Following his arrest and a caution issued by police, the applicant said the following:-

(a) "She [Ms Ayoub] has nothing to do with it". (b) An unknown person had messaged him on an application named “WICKR” and had requested him to pick up the package and deliver it to an unknown location for $2,000. (c) He asked Ms Ayoub to collect the package and in return he would share the $2,000 with her. (d) He did not know what was inside the package and he did not even want to touch it. (e) He did not want to get involved in that "shit”, and “I’ll just get her to do it and I'll pay her half of it”. (f) When asked if he thought it was suspicious, the applicant stated, “I didn't want to ask questions”.

24. The applicant provided the passcode for his mobile phone to police.

The evidence before the sentencing judge

25. In evidence before the sentencing judge was the Crown bundle, which included the agreed facts, the applicant’s criminal and custodial history and a Sentencing Assessment Report (“SAR”) dated 4 December 2024, and the applicant’s bundle, which contained a report of Dr Donald Rowe, consultant clinical psychologist and neurophysiologist, dated 30 November 2024, an undated letter of apology from the applicant and character references from the applicant’s mother, wife and two friends. All material was tendered and admitted without objection. Dr Rowe was not required for cross-examination.

26. Dr Rowe’s report set out a detailed personal history obtained over the course of four consultations with the applicant, which lasted about five hours in total. Dr Rowe also had discussions with the applicant’s wife. The applicant’s history may be summarised as follows.

27. The applicant was born in Iraq in 1988. He immigrated to Jordan with his mother, father and sister when he was four years old. The family’s time in Jordan was characterised by poverty and isolation. The applicant said that his family lived in a single room containing a kitchen and a bathroom. The family showered with a bucket. They faced religious persecution and isolation on account of their Christian faith. The applicant said “we had to hide that fact, because if you tell Muslims you converted, they will kill you… I can remember they were very racist and they didn’t like us…”. The applicant described growing up in an environment where there was no protection, and where “something could happen at any minute”.

28. The applicant reported that when he was 10 years old, his 16-year-old sister was “married off” to a Jordanian man and he did not see her again for six or seven years. The applicant said that his parents “felt like they gave their daughter away”. His parents were badly affected by their experience in Iraq, and trying to get out of Jordan “took up all their time and thinking”. The applicant described feeling neglected by his parents. He said that he felt that he was “struggling all the time… feeling like I was on my own”.

29. When the applicant was 14 years old, he migrated to Australia with his parents because of religious persecution in Jordan. He described ongoing distress at home, saying “my parents were always fighting, there was always an argument.” The applicant said that during these arguments his father would occasionally become physically violent towards his mother. The applicant said “I’d feel guilty, and like I should have stood in even though I was just a kid”. His parents separated for several years but then re-united.

30. The applicant spoke of a difficult time at school in Australia. He experienced racism and felt isolated from his peers. He said “I’m feeling like an alien, like I don’t really belong here…”. After school, the applicant began a degree in Medical Science at Western Sydney University but dropped out after two years because he kept failing subjects. After university, the applicant worked in various occupations for large corporations and then attempted to open four businesses with varying degrees of success. He eventually declared bankruptcy in 2015.

31. A few years later, the applicant began his own online marketing business which involved travel to and work in Canada. The business was impacted badly by the COVID-19 pandemic, and the applicant faced increasing debt. He described feeling like “my debt is so high that I’m about to kill myself. It was very depressing, every time I felt like a door would open it would close up on my face…”.

32. The applicant told Dr Rowe that toward the end of 2022 or 2023 he was becoming desperate. A friend from Canada told him “there is someone I know, and you can earn money through him”. The applicant contacted the individual, who told him that if he picked an item up from the post office, he would receive $2000. The applicant said that after the first time he did this, the person told him that he would receive $5000 if he opened the item. The applicant said that it initially did not cross his mind that the package contained drugs. However, when he opened the package and discovered a white powdery substance, he assumed that the package contained cocaine.

33. Dr Rowe diagnosed the applicant with Persistent Depressive Disorder and Major Depressive Disorder with Anxious Distress. Dr Rowe stated that at the time of the offending, the applicant was suffering from severe levels of depression and anxiety, consistent with the stressors noted above and underlying vulnerabilities due to his difficult developmental experience. Dr Rowe said that it was most likely the case that at the time of the offending the applicant was suffering from a decline in executive function and associated reduced judgement and problem-solving ability, consistent with a high level of mental health impairment and Major Depressive Disorder.

34. Dr Rowe was of the opinion that there was a causal connection between the applicant’s mental health condition and his offending. At par 67 of his report, Dr Rowe stated:-

“Therefore, in my opinion, there is a causal connection between Mr Jameel's offending behaviour and his mental health condition at the time of the offences relating to an increasing level of clinical depression, which led to a relatively higher level of mental health impairment and a more significant decline in executive functions, leading to the impulsive decision to accept the opportunity to import illicit drugs. Had he not suffered from the stressors that led to the more acute level of depression, it is most likely he would not have committed the offences. In turn had he not experienced such a difficult developmental environment, it is most likely the case that he would not have developed such mental health vulnerabilities with associated mental health impairment such that he would have been more successful in his academic and occupational endeavours and less likely to engage in illegal activities for monetary gain. In turn, without such mental health vulnerability, he would have been more cognizant such that if the opportunity arose to engage in such illegal activity, he would have had sufficient executive function to be able to inhibit such impulsive behaviour, as well as evaluate the potential consequences of such behaviour, such that he would have been less likely to commit the offences, regardless of whether he thought he was importing illegal objects or illicit substances.”

35. The applicant’s bundle also contained a letter of apology signed by the applicant, along with four character references from the applicant’s wife, his mother and two friends. In his letter of apology, the applicant said that he understood the seriousness of his conduct and deeply regretted the negative consequences of his actions, which I observe is consistent with what he told Dr Rowe. The applicant said that he had reflected on the damage that methamphetamine does to the community and the strain it puts on frontline workers. He said that his actions were reckless and selfish, and noted that “the impact of my behaviours has been felt not only by the immediate parties involved but also by the broader community”. He stated that he was committed to making the necessary changes to prevent any further offending.

36. The four character references provided by the applicant’s family and friends described the applicant as a kind and conscientious person who cares deeply about the people around him. Each referee expressed their ongoing support for the applicant and their confidence in his prospects of rehabilitation.

Submissions to the sentencing judge

37. In written submissions, the Crown submitted that no sentence other than a substantial period of full-time custody was appropriate in the circumstances. The Crown emphasised the weight to be given to general deterrence and denunciation when sentencing an offender for drug importation offences. The Crown submitted that the Court would be satisfied beyond reasonable doubt that the applicant believed that the substance in the consignments was a border-controlled drug, and that he anticipated receiving a financial benefit for his involvement in the enterprise.

38. The Crown addressed the applicant’s mental health as a subjective factor relevant to the offender under s 16A(2)(m) of the Crimes Act. The Crown noted Dr Rowe’s opinion that the applicant’s mental health conditions had materially contributed to his offending. The Crown referred to the Synopsis section of Dr Rowe’s report and made the following submissions:-

“Dr Rowe’s report indicates that the diagnosed conditions did materially contribute to the commission of the offending, as stated at paragraph [3], page 2 of his report:

Mr Jameel had experienced considerable emotional and financial stressors, on a background of a difficult developmental experience. This has led to poor strategies and poor decision making and various academic and occupational difficulties over the years including bankruptcy in 2015. The combination of the more recent stressors led to a more acute episode of depression and a relatively higher level of mental health impairment, such that when the opportunity arose to import an illegal substance, he did so impulsively without adequate consideration of the consequences such as the high risk of being caught and/or more law abiding alternatives of obtaining financial gain.

However, the Crown submits that the diagnosed conditions should not operate to significantly reduce the Offender's moral culpability as it did not materially cause or contribute to the offending. Further, it is submitted that the offending was a result of his own financial benefit and greed, in which general deterrence plays a large factor on sentencing offenders in drug related matters”.

39. This was the totality of the Crown’s submissions with respect to the applicant’s mental health. The Crown did not make any submission with respect to the applicant’s background.

40. In written submissions, the applicant submitted that, taking into account all matters, consideration should be given to a term of imprisonment being served in the community by way of an ICO. Counsel for the applicant drew attention to the applicant’s cooperation with police by providing the passcode to his phone, his early plea of guilty and his statements of regret to Dr Rowe and in his letter of apology as evidence of insight, genuine remorse and contrition.

41. Counsel for the applicant summarised the applicant’s subjective case as a matter to be considered under s 16A(2)(m) of the Crimes Act. This summary of the applicant’s subjective case included the following:-

“4. He was born in Iraq and migrated to Jordan with his family aged 4.

5. This was in the context of the Gulf War.

6. His family consisted of his mother, father, and sister.

7. This existence involved poverty, experienced significant disadvantage,

dysfunction, racism, and religious persecution.

8. It was compounded by neglect on the part of his parents and his being

witness to abuse and physical violence within the household.

9. At the age of 10 years his sister was married off to an older man and he

was distressed at this, compounded by not seeing her for 6 or 7 years.

10. At the age of 14 years he migrated to Australia with his parents.

11. Prior to this his education appears to have been limited.

12. After arriving in Australia his relationship with his parents

deteriorated further.

13. He continued to experience disadvantage, dysfunction, and racism that

stymied his development further, both emotionally, educationally, and

socially.

…

24. Thorough testing established that he had experienced much

deprivation in his early life that would likely have made him vulnerable

later in life to both mental health and behavioural issues.

25. He was diagnosed as suffering Persistent Depressive Disorder and

Major Depressive Disorder (with Anxious Distress).

26. He was also said to meet the criteria for a diagnosis of Attention Deficit

Disorder.

27. These were opined to have had a contextual and causal connection to

the offending conduct.

28. This was in the sense that his executive functioning was impaired

because the conditions existed at the time of the offending conduct and

led to impaired decision making and greater risk taking.”

42. After summarising the applicant’s subjective case, counsel for the applicant made the following submission:-

“His moral culpability is reduced in light of the context in which the

offence occurred, having regard to his state of knowledge at the time,

and bearing in mind his subjective circumstances.”

43. As I have said, oral submissions at the sentencing hearing were very brief. Neither counsel made any oral submissions about the applicant’s mental health, background or moral culpability. It is fair to say that the sentencing judge was not assisted by comprehensive submissions on these issues.

The sentencing judgment

44. The sentencing judge began by summarising the facts of the offending. His Honour noted that the offender had provided some assistance to authorities, and took that fact into account on sentence. The sentencing judge acknowledged the applicant’s lack of a criminal record, his letter of apology and the letters of support that were before the Court.

45. The sentencing judge referred to Dr Rowe’s report and briefly summarised the applicant’s personal history. His Honour noted that the offender had told Dr Rowe that his childhood was “marked by exposure to violence and trauma associated with religious persecution”. His Honour referred to the SAR of 4 December 2024, in which the applicant had maintained that he was naïve and not privy to the contents of the packages. The applicant said to the author of that report that he had felt like his involvement in the drug importation was the only way to relieve himself from his financial stress, which he described as overwhelming his life and emotions.

46. The sentencing judge said that those “self-serving statements to the sentencing report author do not sit well with the text messages sent by the offender to his overseas, or apparently overseas, confederate in March 2023.” His Honour was satisfied beyond reasonable doubt that the applicant knew that the imported packages contained a border-controlled drug and that he was to be financially rewarded for his involvement.

47. The sentencing judge then moved on to assess the objective seriousness of the offending and the applicant’s moral culpability. He said:-

“This Court is obliged to make an assessment of the objective gravity of the offending so that all relevant and applicable principles which bear upon the seriousness of the offences should be taken into account. I accept that in assessing the objective seriousness of an offence, regard may be had to facts personal to an offender that materially contributed to the offending including mental illness. That is so because those factors go to the mens rea of an offence. Similarly factors such as motive may be taken into account in this way. The assessment of an offender’s moral blameworthiness for an offence is a separate but related task to that of assessing the objective seriousness of the offence. Together, they set the parameters of an appropriate sentence ensuring the sentence is proportionate to the offence. I am conscious that a determination of moral culpability can involve consideration of a wider set of subjective factors affecting an offender than the objective seriousness of an offence. Sometimes, quite powerful sentencing factors concerning an offender can impact upon the sentence reached by the Court. Equally, sometimes those personal matters do not impact significantly the sentence to be imposed by the Court.”

48. The sentencing judge stated that he was required to take into account the matters listed in s 16A(2) of the Crimes Act which were relevant and known to the Court. His Honour observed that he had regard to the principles relevant to the sentencing of serious federal drug offenders set out in the relevant case law. He emphasised that the offender was an important intermediary and facilitator in the importation and attempted possession of the border-controlled drugs and that the offending, which had features of planning and sophistication, had occurred over more than 2 months. His Honour was satisfied that the applicant was motivated by financial gain.

49. The sentencing judge found that the offending was objectively serious and took into account the maximum penalty as a legislative guidepost.

50. His Honour found that the applicant’s guilty plea was entered in the face of a very strong Crown case, and that given the applicant’s “self-serving” statements made to the author of the SAR, his Honour was not satisfied on the balance of probabilities that the offender had shown any real remorse as opposed to regret.

51. His Honour then turned to consider the High Court case of Bugmy v T**he Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”). He acknowledged the well-known principles that the relevance of a deprived background does not diminish with the passage of time and that an offender’s deprived background should be given full weight in every sentencing decision. His Honour then said:-

“I pause here to say that that applies in cases such as this where someone has not previously been before the Court for committing an offence.

In any event, this does not mean that Bugmy factors must be given the same weight in every case. The purposes of sentencing are numerous and often difficult to apply when the objective and the subjective factors point in different directions. The extent to which an offender’s moral culpability is reduced will vary in each case and sometimes it will not be reduced at all but instead taken into account in other ways. That is the situation in the present case.

The application of Bugmy principles in the context of unpremeditated crimes of violence which arise out of prolonged and widespread social disadvantage is fairly straightforward. However, the present case features a series of ongoing, repeated, deliberate acts and otherwise neither offence is of a kind that could sensibly be regarded as flowing from dysfunctional tendencies subconsciously absorbed from experience within the offender’s family in early childhood.”

52. The sentencing judge then considered the applicant’s mental health. His Honour said:-

“Notwithstanding a considered assessment [of the report] by Dr Donald Rowe, psychologist, including his diagnosis of the offender as a person suffering a major depressive disorder with anxious distress and who might possibly be suffering adult attention deficit disorder, I am unable to accept on the balance of probabilities the opinions that Dr Rowe advances concerning the offender’s commission of the index offences.

…

I am satisfied beyond reasonable doubt that the offender acted with knowledge of what he was doing and the gravity of his criminal activities. He went to great lengths to avoid detection and he actively participated in the efforts to make the drug-smuggling business a success. His actions over some 9 weeks were not impulsive as contended for by Dr Rowe. His actions required planning, co-ordination and persistence. Moreover, they were motivated by greed.

…

Although I accept that his diagnosed mental ill-health has made and will make things more difficult for him, it does not operate to reduce his moral culpability.”

53. The sentencing judge acknowledged that the material tendered on behalf of the applicant was focused on the consequences of the offending for the offender and his family. His Honour noted that the purposes of sentencing go beyond the rehabilitation of the offender and personal deterrence, and he acknowledged the particular significance of general deterrence in the context of serious drug offences. His Honour said:-

“I have had regard to the impact of a penal consequence for the offender upon his wife and family. However, the Court cannot allow impact upon family members and dependants to displace other sentencing considerations, particularly the need to ensure that the offender is adequately punished for his offending and the overriding need to deter others from participating in the drug trade.”

54. His Honour applied a discount of 25% to reflect the utilitarian value of the applicant’s early guilty plea, and fixed an overall head sentence of 7 years with a non-parole period of 4 years (a ratio of approximately 57%).

Leave with respect to grounds 1 and 2

55. In written submissions, the Crown submitted that this Court should refuse leave to appeal with respect to grounds 1 and 2 because there was only an oblique reference made to a reduction in the applicant’s moral culpability in defence counsel’s submissions on sentence. The Crown relied on Stewart v R [2012] NSWCCA 183 in which Button J (McClellan CJ at CL and Price J agreeing) said at [56]:-

“Speaking generally with regard to this ground, I do not consider that there is a requirement that sentencing judges emphasise in ex tempore remarks on sentence matters that have not been the subject of emphasis in the plea in mitigation made by defence counsel. If defence counsel at first instance makes a decision barely to refer to a subjective factor that may be open on the evidence, or not to refer to it at all, and the sentencing judge follows that lead in ex tempore remarks on sentence, it will seldom be that an appeal to this Court founded on that approach by the sentencing judge will succeed. That is because an appeal to this Court is not "the occasion for the revision and reformulation of the case presented below" to use the words of Johnson J (with whom McClellan CJ at CL agreed on this aspect; Rothman J not expressing any view with regard to it) in Zreika v R [2012] NSWCCA 44. To adopt a different course in this Court would force sentencing judges to refer to all subjective factors whether or not emphasised, or even relied upon, by defence counsel in the plea in mitigation at first instance. That is hardly consonant with the efficient administration of justice.”

56. While not referred to by the Crown, the notion that leave is required to raise an issue that was not raised on sentence appears to have its origin in the following passage of Johnson J’s reasons in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81]-[82] (“Zreika”):-

“The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29].

In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance.”

57. In Anquetil v R [2025] NSWCCA 147, Hamill J (Price AJA agreeing) considered that Zreika does not create a requirement for leave where an applicant seeks to raise an issue that was not raised on sentence. His Honour said at [129]:-

“By the terms of s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), all appeals against sentence brought by an offender require a grant of leave. Further leave requirements are created by the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (for example, rules 3.5 and 4.15). This Court sitting in one particular case does not have the power to create rules or establish a requirement for leave. I do not understand Johnson J to have purported to create a requirement for leave in the circumstances prevailing in Zreika or those that exist in the present case. Furthermore, Rothman J (at [128]-[131]) did not agree with the passages of Zreika upon which Campbell J relies, and the concurrence of McClellan CJ at CL (at [1]) was in the most general terms. None of the Judges in Zreika referred to an additional layer of leave.”

58. His Honour’s approach was endorsed by Yehia J (Kirk JA agreeing with additional reasons, McGuire J agreeing with both) in Hong v R [2026] NSWCCA 64 at [112]-[113], where her Honour said:-

“While necessarily turning on the individual circumstances of each case, following Zreika, this Court has consistently reiterated that there is a difficulty in asserting error on the part of the sentencing judge for failing to take a matter into account when no submission about the matter was made at first instance: Richardson at [59]; Yarmohammadi at [43]-[44]; Can v R [2023] NSWCCA 179 at [77].

However, as Hamill J observed Anquetil at [129] (Price AJA agreeing at [1]), Zreika does not establish or create an additional leave requirement for an appeal against sentence…”

59. I agree with Hamill and Yehia JJ. I do not consider that the applicant must surmount an additional requirement for leave. In any event, the applicant did raise the subject of grounds 1 and 2 before the sentencing judge.

Ground 1

60. The applicant’s first ground of appeal is that the sentencing judge denied the applicant procedural fairness by rejecting the opinion of Dr Donald Rowe, in circumstances where the opinion was unchallenged by the Crown, and where the intended rejection of this opinion was not raised with counsel so that there was an opportunity to address it.

Submissions

61. The applicant conceded in oral submissions that the sentencing judge had not rejected the entirety of Dr Rowe’s opinion. In particular, the applicant conceded that the sentencing judge accepted that the applicant had been diagnosed with Major Depressive Disorder with Anxious Distress.

62. The applicant’s core complaint is that the sentencing judge rejected Dr Rowe’s opinion that there was a causal connection between the applicant’s mental health condition and his offending and consequently declined to find that there was a reduction in his moral culpability without giving notice to the applicant that he proposed to do so.

63. The sentencing judge quoted Dr Rowe’s report in his ROS as follows:-

“Dr Rowe opines that the offender’s experiences of considerable emotional and financial stressors on a background of a difficult developmental experience led him to make poor decisions. Dr Rowe further states:

‘The combination of the more recent stressors led to a more acute episode of depression and a relatively higher level of mental health impairment such that when the opportunity arose to import an illegal substance, he did so impulsively without adequate consideration of the consequences such as the high risk of being caught and/or more law-abiding alternatives of obtaining financial gain’.”

64. His Honour then went on to say (as noted above at [52]):-

“His actions over some 9 weeks were not impulsive as contended for by Dr Rowe. His actions required planning, co-ordination and persistence. Moreover, they were motivated by greed.

…

Although I accept that his diagnosed mental ill-health has made and will make things more difficult for him, it does not operate to reduce his moral culpability.”

65. The applicant observed that no objection had been taken to the tender of Dr Rowe’s report and that he had not been required for cross-examination. The applicant submitted that his counsel had raised a reduction of the applicant’s moral culpability in light of his subjective circumstances at the sentencing hearing and that this submission was implicitly accepted by the Crown in its written submissions (see [38] above).

66. The applicant contended that this submission constituted a concession by the Crown that there should be at least a small reduction in the applicant’s moral culpability. Therefore, if the sentencing judge intended to find that the applicant’s moral culpability was not reduced by reason of his mental health, his Honour was obliged to inform the parties so that the applicant could have an opportunity to respond.

67. The applicant submitted that the sentencing judge’s rejection of Dr Rowe’s opinion was based on a misunderstanding of Dr Rowe’s characterisation of the offending as “impulsive”. The applicant pointed to other parts of Dr Rowe’s report which were said to make clear that Dr Rowe’s reference to “impulsivity” referred to impulsivity in accepting the offer to become involved in the offending, rather than the offending itself. It was submitted that if the sentencing judge had given the parties an indication that he was minded to reject Dr Rowe’s opinion on causal nexus, the applicant would have had an opportunity to clarify Dr Rowe’s use of the word “impulsive”, and that this misunderstanding may have been clarified.

68. The Crown did not accept that the submission made by the Crown (at [38] above) was a concession that there should be at least a small reduction in the applicant’s moral culpability. Rather, it was said that the submission squarely put in issue the alleged contributory significance of the applicant’s mental health and emphasised that the applicant’s offending was motivated by financial benefit and greed. The Crown submitted that the sentencing judge’s conclusion was consistent with that submission made by the Crown, and that it was open to his Honour to act on it without alerting the parties to his likely finding as it was an issue in dispute that required resolution.

69. As to the applicant’s submission that Dr Rowe’s use of the word “impulsive” had been misunderstood, Mr Chhabra, who appeared on behalf of the Crown, submitted that the distinction drawn between impulsivity in accepting the offer to become involved in the offending and impulsivity in offending was a false dichotomy. The Crown said that seeking to “fossilise the single moment in time” in which the applicant first decided to offend was irreconcilable with what actually occurred, which was sustained and calculated offending over a period of more than 9 weeks. In light of the characteristics of the offending (not challenged by the applicant), the Crown submitted that it was open to his Honour to reject Dr Rowe’s opinion that the applicant’s mental health materially contributed to his offending.

70. The Crown submitted that there was no obligation on the sentencing judge to accept what was contained in the psychologist’s report merely because it had been admitted without objection. Rather, the applicant still bore the onus of persuading the sentencing judge on the balance of probabilities that his mental health conditions had materially contributed to his offending and that his moral culpability should be reduced. The Crown relied on Isaac v R (2024) 384 FLR 431; [2024] NSWCCA 2, where Davies J (Hamill and Huggett JJ agreeing) stated at [61]-[63]:-

“These matters point to the fallacy in the submissions now made on behalf of the applicant, namely, that because Dr Dayalan’s report was tendered without objection and he was not cross-examined, the sentencing judge was obliged to accept what was contained in that report. Ultimately, the onus was on the applicant to persuade the sentencing judge on the balance of probabilities that the position was as she had outlined it to Dr Dayalan. In reaching a decision about whether such an onus had been discharged, the sentencing judge had to consider all of the evidence, and not just the material contained in Dr Dayalan’s report…

The sentencing judge was not obliged to accept what was contained in Dr Dayalan’s report. He had to be satisfied on the balance of probabilities that those matters were made out. It was scarcely surprising that his Honour found that they were not made out, except in accordance with the Crown’s concession, when there was conflicting evidence in the statement of agreed facts and in the contemporaneous medical evidence tendered on behalf of the applicant.”

71. The Crown submitted that, given that the sentencing judge was satisfied beyond reasonable doubt that the applicant had acted with knowledge of the gravity of his actions, that he went to great lengths to avoid detection, and that he acted with planning, coordination and persistence, it was plainly open to his Honour to reject Dr Rowe’s characterisation of the offending as “impulsive” (however defined) and consequently reject Dr Rowe’s conclusion as to the material contribution of the applicant’s mental health conditions to his offending. I observe that the distinction between “impulsively accepting an opportunity to offend” and “impulsively offending” is difficult to discern in circumstances where the offending continued over a long period of time.

72. In circumstances where the matter was not common ground between the parties and his Honour’s conclusion was available on the known material, the Crown submitted that no procedural unfairness had been occasioned.

Consideration

73. Relevant principles relating to procedural fairness are distilled in the oft-quoted Full Federal Court decision of Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; [1994] FCA 1074:-

“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

74. It is well-settled that a decision maker is not required to give a running commentary on an applicant’s prospects of success or forewarn a party of all possible reasons for failure: Re Minister for Immigration and Multicultural Affairs*;* Ex Parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [31].

75. However, there is a risk of procedural unfairness being occasioned where a judge rejects evidence or a submission which constitutes common ground between the parties, and the parties, based on that common understanding, have not addressed that aspect of the case: Smith v R [2024] NSWCCA 59 at [41].

76. The concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural Affairs*;* Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. Therefore, the key to determining whether there has been a breach of procedural fairness is to ascertain the consequence of the departure from the dictates of proper procedure: Weir v R [2011] NSWCCA 123 at [66].

77. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 the High Court said at [7]:

“In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.”

78. Whether practical injustice has been occasioned will inevitably turn on the particular facts of the case: Nguyen v R [2025] NSWCCA 42 at [50].

79. In this case, the crucial issue is whether or not the sentencing judge’s finding that the applicant’s moral culpability was not reduced by reason of his mental health was a departure from an agreed position between the parties.

80. The question turns in part on the Crown’s use of the word “significantly” in its submission quoted at [38] above. While the Crown’s submission was not entirely clear, I am unable to accept the applicant’s contention that the use of the word “significantly” in that context amounted to a concession that some reduction in moral culpability was warranted because the applicant’s mental health materially contributed to his offending. That interpretation ignores the substantive submission in the balance of the sentence and that immediately following: that the applicant’s mental health condition did not materially contribute to his offending, and that his offending was motivated by greed.

81. A person’s mental health condition will only reduce their moral culpability where their mental health contributes to the commission of the offence in a material way: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. The Crown’s submission that the applicant’s mental health did not materially cause or contribute to his offending is therefore best understood as a submission that the applicant’s mental health condition did not reduce his moral culpability at all.

82. In my view, no procedural unfairness occurred in this case. The sentencing judge was presented with two opposing submissions with respect to the applicant’s mental health and its effect on his moral culpability, which required determination one way or the other. In that context, it was incumbent on the applicant to satisfy his Honour of the purported material contribution on the balance of probabilities. His Honour was not required to find a material contribution simply because Dr Rowe had expressed a view that such a connection existed.

83. This is not a case in which the sentencing judge “swept aside” the considered opinion of a medical or psychological expert in the sense discussed in Lloyd v R [2022] NSWCCA 18. The sentencing judge accepted the applicant’s personal history which was obtained by Dr Rowe and acknowledged that the applicant’s childhood had been “marked by exposure to violence and trauma”. His Honour also accepted Dr Rowe’s diagnoses of the applicant as a person suffering from Major Depressive Disorder with Anxious Distress and he expressly found that the applicant’s mental ill-health would make things more difficult for him. Indeed, the only parts of the report that his Honour in fact rejected was Dr Rowe’s characterisation of the offending as “impulsive” and his view that the applicant’s mental health had not materially contributed to the commission of the offences. Regardless of how the sentencing judge understood the word “impulsive” in that context, his Honour was entitled in the circumstances to reject that opinion and find no reduction in the applicant’s moral culpability.

84. Indeed, in circumstances where it was plainly open for the sentencing judge to find that the offending was sustained and motivated by financial gain, the applicant’s counsel should have been alive to the possibility that the sentencing judge would reject Dr Rowe’s opinion that the applicant’s mental health was causally connected to his offending, and consequently decline to find a reduction in moral culpability on the basis of the applicant’s mental health. There were avenues available to the applicant’s counsel to address this possibility, including calling the applicant to give evidence, adducing further evidence from Dr Rowe or making further oral submissions on these issues. The choice not to do so was a missed opportunity to persuade the sentencing judge that the applicant’s moral culpability should be reduced because of a material contribution of the applicant’s mental health to the commission of the offences. A missed opportunity is to be distinguished from procedural unfairness and practical injustice.

85. I would reject this ground of appeal.

Ground 2

86. The applicant’s second ground of appeal is that as a result of ground 1, or in any event, the sentencing judge failed to take into account the applicant’s disadvantaged background.

87. I propose to deal with this ground on the basis that the applicant’s complaint was that the sentencing judge failed to take into account the applicant’s disadvantaged background, as that is how argument largely proceeded during the hearing.

Submissions

88. The applicant submitted that the sentencing judge, having summarised the applicant’s background and acknowledging that an offender’s deprived background should be given “full weight” in accordance with Bugmy, then failed to indicate how it had been taken into account.

89. Indeed, it was submitted that the sentencing judge failed to take into account the applicant’s disadvantaged background detailed in Dr Rowe’s report (and in the applicant’s written submissions below) at all, which resulted in the finding that the applicant’s moral culpability was not reduced.

90. The Crown submitted that the sentencing judge’s ROS (and in particular the extract set out at [51] above) demonstrated a nuanced engagement with the applicant’s individual circumstances. The Crown submitted that the sentencing judge did take into account the applicant’s background of disadvantage but ultimately concluded that, in this particular case and bearing in mind the nature of the offending, the Bugmy principles did not operate to reduce the applicant’s moral culpability.

91. The Crown’s submitted that it can be inferred from the structure of the sentence imposed that his Honour took the applicant’s background into account when determining the non-parole period by imposing a “generous” ratio of 57%. It was submitted that, as the applicant’s mental health was inextricably linked with his deprived background (a proposition with which I agree), applying that ratio must be understood as a way of taking into account the applicant’s background, including his mental health conditions.

Consideration

92. I have concluded that the sentencing judge did take into account the applicant’s background of disadvantage in the sentencing exercise.

93. The sentencing judge clearly acknowledged that the Bugmy principles were enlivened. He accepted that a background of childhood deprivation was a factor relevant to the sentencing task notwithstanding his determination that the applicant’s background did not reduce his moral culpability for the offending. I do not consider that his Honour’s conclusion as to the applicant’s moral culpability arose out of a misapplication of the Bugmy principles. Consistent with the principle in Bugmy that a background of disadvantage must always be given “full weight” in the sentencing exercise, his Honour recognised that a background of disadvantage may be “taken into account in other ways”.

94. The “other ways” in which his Honour said that he would take into account the Bugmy factors are to my mind reflected in the modest head sentence imposed (for two counts that each attracted a maximum penalty of life imprisonment, and in which the applicant’s role in the offending was appreciably greater than low-level) and in the significantly discounted ratio for the non-parole period. As Button J (Hoeben JA and Johnson J agreeing) said in Hanania v R [2012] NSWCCA 220 at [33]:-

“It seems to me that the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed. Such an approach leads to considerations of outcomes, not process.”

95. Taking into account the circumstances of the offending, the ROS and the ultimate sentence imposed, I am satisfied that his Honour took the applicant’s background of disadvantage into account.

96. I would therefore dismiss ground 2.

97. As this case yet again concerns the application of the Bugmy principles, I make the following additional comments.

98. While no error has been occasioned in this case, I observe that care should be taken to avoid reasoning that assumes either that a “causal link” is required before the Bugmy principles are enlivened, or that the Bugmy principles are not applicable to crimes involving planning.

99. In NK v R [2025] NSWCCA 73 (“NK”), Yehia J (Ball JA agreeing, Fagan J agreeing with additional reasons) said the following about the application of the Bugmy principles at [110]-[113]:-

“In my view the correct application of the Bugmy principles involves the following considerations. Firstly, a sentencing judge must make an assessment of whether an offender’s background reduces their moral blameworthiness, bearing in mind that the High Court in Bugmy said, “… a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending” (at [43]).

This assessment is made by reference to matters subjective to the offender. An offender’s moral blameworthiness cannot be assessed by reference to factors unrelated to an offender, such as the purposes of sentencing.

Secondly, if moral culpability is reduced, a sentencing judge is required to consider the impact of that reduction on the various purposes of sentencing. For instance, a reduced moral culpability may mean that the extent to which the conduct is denounced is less than in a case where the offender has a ‘normal’ or ‘advantaged’ background. On the other hand, the reduction in moral culpability may be offset by the weight afforded to general deterrence and/or the protection of the community.

Thirdly, even where the reduction in moral culpability is offset, wholly or in part, by virtue of the weight to be afforded to one or more purposes of sentencing, an offender’s background of disadvantage must be given ‘full weight’ in ‘every sentencing decision’: Bugmy at [44].”

100. Her Honour’s approach was approved by N Adams J (with whom Bell CJ and Payne JA agreed) in DG v R [2025] NSWCCA 137 (“DG”) at [111]-[115].

101. In YZ v R (2025) 398 FLR 424; [2025] NSWCCA 165 (“YZ”) at [62]-[68], I adapted the considerations set out by Yehia J in NK and summarised the principles relevant to the application of the Bugmy principles. This summary has recently been considered in Abed v R [2025] NSWCCA 223 (McGuire J, Mitchelmore JA and Cavanagh JJ agreeing) at [70]-[81] (“Abed”) and applied in Whereat v Rex [2026] NSWCCA 73 (“Whereat”) (Free JA, Rigg and Sirtes JJ agreeing). I set out my comments in full:-

“Adapting the three considerations set out by Yehia J in NK, the following is, in my view, the process to be undertaken when applying the Bugmy principles.

The first consideration is to determine whether the offender’s background is one of ‘deprivation’ or ‘disadvantage’ and whether it affects an offender’s moral blameworthiness: NK at [110]. There is no requirement that the disadvantage must be ‘profound’ or ‘sustained’ in order to enliven the Bugmy principles: Hoskins v R [2021] NSWCCA 169 (‘Hoskins’) at [57] (per Brereton JA); Nasrallah v R [2021] NSWCCA 207 (‘Nasrallah’) at [110]-[111] (per Hamill J).

The following principles are relevant to the determination of whether an offender’s disadvantaged background affects their moral culpability for their offending:

(1) An offender’s moral culpability may be reduced because there is a causal link between their background and their offending. Indeed, such a causal link ‘will inevitably support a finding that such an offender’s moral culpability is reduced’: DR v R (2022) 300 A Crim R 116; [2022] NSWCCA 151 at [37] (per Bellew J, Ward P and RA Hulme J agreeing); Dungay v R [2020] NSWCCA 209 (‘Dungay’) at [153] (per N Adams J, Bell P and Davies J agreeing).

(2) However, the authorities are now clear that a causal link between an offender’s background and the offence for which they are to be sentenced is not required for a court to make a finding of reduced moral culpability: Dungay [136]-[153] (per N Adams J); Hoskins at [57] (per Brereton JA); Nasrallah at [88] (per Hamill J); Lloyd v R [2022] NSWCCA 18 at [27] (per McCallum JA); R v MJ [2023] NSWCCA 306 (‘MJ’) at [2]-[15] (per Simpson AJA). Whether or not a causal link can be established, it will often be the case that an offender from a disadvantaged background cannot be said to bear the same moral responsibility as a person whose background is advantaged. In the oft-quoted words of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69], a court may consider that ‘common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.’

(3) In MJ, Simpson AJA emphasised at [15], that the essential question is the assessment of an offender’s moral culpability. I agree with her Honour. I would add that in my view, the assessment of whether an offender’s moral culpability is reduced by reason of their disadvantaged upbringing often involves one simple consideration. That is, in all the circumstances, can it be accepted that the offender in question bears the same moral responsibility for their offending as a person who has had a privileged or conventional upbringing? If that cannot be accepted, there must inevitably be a reduction in the offender’s moral culpability. I consider that this is consistent with the plurality’s reasoning in Bugmy.

(4) There is no requirement that the offending be ‘impulsive’ for a court to find that an offender’s moral culpability is reduced by reason of their disadvantaged background. Neither is evidence of planning necessarily a barrier to a finding of reduced moral culpability: see Robertson v R [2024] NSWCCA 22 (‘Robertson’) at [111]-[114] (per Ierace J, Harrison CJ at CL, Wilson J agreeing) and the cases discussed therein: Chiarlini v R [2023] NSWCCA 227 at [21] and [37] (supplying a large commercial quantity of methylamphetamine); Baines v R [2023] NSWCCA 302 at [71]-[76] (a planned gangland execution) and Harris v R [2023] NSWCCA 174 at [79] and [84] (armed robbery).

(5) The effects of a background of profound disadvantage ‘do not diminish with the passage of time’: Bugmy at [44]. A long history of offending is no barrier to a finding of reduced moral culpability because of an offender’s background: Bugmy at [43]. Similarly, the fact that an offender has lived a pro-social life in the period between their disadvantaged childhood and offending is also not a barrier to a finding of reduced moral culpability: Robertson at [114], Bugmy at [43]-[44].

The second consideration, if moral culpability is reduced, is for a sentencing judge to consider how reduced moral culpability impacts the weight to be given to the various purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (with respect to State offenders), or, in the case of Commonwealth offenders, how reduced moral culpability impacts the various matters to be considered under s 16A of the Crimes Act. The competing purposes of sentencing are a separate consideration to the offender’s moral culpability: NK at [11] (per Fagan J) and at [112] (per Yehia J).

With respect to State offenders, a court should consider how the diminishment in moral culpability ‘bears upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, retribution and the promotion of rehabilitation’: NK at [102]; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [92]-[93] (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ). Similar considerations arise for examination pursuant to s 16A of the Crimes Act with respect to Commonwealth offenders. When determining the weight to be given to general deterrence, a sentencing judge must consider whether that particular offender is an appropriate vehicle for general deterrence: DG at [126]-[131].

A reduction in moral culpability does not automatically translate to a reduced sentence: Harris v R [2021] NSWCCA 322 at [89] (per Dhanji J, Simpson AJA and Ierace J agreeing). A sentencing judge must have regard to countervailing factors, so far as they are relevant: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]; NK at [112].

Third, even if a reduction in moral culpability is offset by the weight given to one or more purposes of sentencing, if an offender has a deprived background, that background must be given ‘full weight’ in every sentencing decision: Bugmy at [44], NK at [113].”

102. In Abed, McGuire J considered the principles referred to in YZ and made the following comments at [80]:-

“Although the sentencing judge referred to the general principles, his statement that moral culpability will not usually be reduced in cases where there is premeditation and planning overstates the law. Rather, the authorities establish that planning is not a barrier to a finding of reduced moral culpability and there is no requirement that the offending be ‘impulsive’. Similarly, the statement that the index offending is not an offence of a kind that could sensibly be regarded as flowing from subconscious dysfunctional tendencies is indicative of error. The authorities establish that there need not be any causal link between the offender’s background and the offence. Rather than focusing on the nature of the offence, the authorities establish that the focus should be on the individual offender. The relevant question is whether the offender bears the same moral responsibility for their offending as a person who has had an upbringing without disadvantage.”

103. In Whereat*,* Free JA said of YZ at [33]:-

“For the purposes of determining ground 2 of the appeal, two important propositions emerge from this summary of the authorities. One is that establishing a causal link between the deprived background of the offender and the commission of the relevant offence is not essential. An offender’s deprived background may be relevant to the assessment of moral culpability and an appropriate sentence, notwithstanding the lack of an established causal connection of that kind. The second is that it is nevertheless relevant to consider whether there is such a causal link. That is because where there is found to be a causal connection between the deprived background of the offender and the commission of the relevant offence it will follow that the moral culpability of the offender is reduced. That will be a matter of significance to the sentencing exercise.”

104. The relevant question in Whereat was whether the sentencing judge had fallen into the error of assuming that the Bugmy principles were only engaged if a causal link was found between the offender’s background and his offending. Free JA considered that a fair reading of the sentencing remarks demonstrated that the sentencing judge had not fallen into error. Free JA said at [35]:-

“His Honour appropriately considered whether such a causal link had been established and found that it had not been. Immediately after expressing that conclusion his Honour said ‘nor am I satisfied that his background is such as to reduce his moral culpability.’ As the Crown correctly submits, this is a separate and distinct finding from the earlier point that no causal link was established. This reasoning reflects that the sentencing judge quite properly appreciated that the finding about the lack of a causal connection was not the end of the inquiry. It remained necessary to determine whether the offender’s background was deprived or disadvantaged in such a way as to reduce his moral culpability.”

105. In my opinion, nothing said by Free JA in Whereat is inconsistent with the principles set out in NK or YZ. No error was found in Whereat because the sentencing judge did not end his assessment of how the applicant’s background affected his moral culpability at the point when he was unable to identify a causal link. Having established that no causal link existed, the sentencing judge made a separate (negative) finding on moral culpability but concluded that aspects of the applicant’s background would “remain a consideration in his subjective case and ameliorate to some modest extent the sentence to be imposed”.

106. In the present case, acknowledging again that the sentencing judge’s remarks were delivered ex tempore, while it would have been preferable for his Honour to indicate with greater specificity how he had otherwise taken the applicant’s background into account, I accept that, like in Whereat, his Honour’s remarks (and indeed, the ultimate result) indicate that the applicant’s background of disadvantage was taken into account despite the finding that his background did not reduce his moral culpability.

107. It must always be remembered that the application of the Bugmy principles requires a focus on the individual offender: see NK at [111] and Abed at [80]. So much can be gleaned from the observations of Simpson J in R v Millwood [2012] NSWCCA 2 (“Millwood”) and R v MJ [2023] NSWCCA 306 (“MJ”). Those observations bear repeating.

108. In Millwood, a pre-Bugmy case, Simpson J (Bathurst CJ and Adamson J agreeing) said at [69]:-

“I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been ‘tragic and dysfunctional’. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.”

109. Some ten years later, in MJ, Simpson AJA said the following at [5]:-

“Implicit in those observations is recognition that a childhood or adolescence marked by profound disadvantage may have an inhibitory effect on the development of values, on the acquisition of a moral compass, and on the capacity to make behavioural decisions in accordance with prevailing social norms. The relevant causal connection is between the dysfunctional background and the offender’s impaired socialisation and adjustment to, and conduct in accordance with, those social norms. To search for a causal connection between the dysfunctional background and the offence in question is to bypass the larger issue and to focus too narrowly on the offence. It ignores the compromise of the ‘capacity to mature and to learn from experience’: Bugmy at [43]. The plurality in the High Court were, as I understand [40] and [43] of the judgment, acknowledging the pervasive effect of profound deprivation, which is not confined to the commission of a single offence (or series of offences).”

110. At [15], her Honour said:-

“To discount the effect of childhood disadvantage because no causal connection with the offence for which sentence is to be imposed is established is to ignore the subtleties and nuances of the considerations that the plurality in the High Court in Bugmy recognised. To ask whether there is a causal connection between a dysfunctional background and the offence for which sentence is to be passed is to ask the wrong question and potentially to mislead and distract from the essential question, which is the assessment of the offender’s moral culpability.”

111. I endorse and adopt her Honour’s observations in both Millwood and MJ. In applying the Bugmy principles, it is important to consider not only how an offender’s deprived background is relevant to the particular instance of offending, but also how that background, to paraphrase the plurality’s words in Bugmy*,* has left its mark on the offender throughout their life. The question at the heart of the Bugmy principles is this: in all the circumstances, can it be accepted that the offender in question bears the same moral responsibility for their offending as a person who has had a privileged or conventional upbringing?

Ground 3

112. The applicant’s third ground of appeal is that the sentencing judge erred by failing to indicate how he took into account hardship to the applicant’s family, including his now young child, or alternatively, that he applied an incorrect principle to the consideration of the matter, namely, that he erred according to with Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (“Totaan”).

Submissions

113. The sentencing judge dealt with hardship to the applicant’s family as follows:-

“I have had regard to the impact of a penal consequence for the offender upon his wife and family. However, the Court cannot allow impact upon family members and dependants to displace other sentencing considerations, particularly the need to ensure that the offender is adequately punished for his offending and the overriding need to deter others from participating in the drug trade.”

114. The applicant submitted that it is unclear from these remarks how hardship to the applicant’s family was taken into account, and that it can be inferred that the sentencing judge committed an error contrary to the principle in Totaan by considering that hardship to the applicant’s family had to be “exceptional” before it could be taken into account.

115. The applicant submitted that the present case was analogous to Ahmad v R (2023) 383 FLR 225; [2023] NSWCCA 294 (“Ahmad”). In that case, error was found (and conceded by the Crown) on the basis that the sentencing judge had not taken into account the effect of the sentence on the applicant’s family because her Honour had not considered that it amounted to “exceptional hardship”. The applicant relied in particular on the following passage at [11]:-

“During the proceedings before the sentencing Judge, the appellant relied on evidence, and made submissions, about the adverse effect of a sentence of imprisonment on his family. In her Honour’s reasons on sentence, she remarked, ‘I accept that due to his wife’s medical conditions he became the primary caretaker for the children for most of their lives’: at [193]. Otherwise, her Honour did not make any reference to the appellant’s evidence relevant to s 16A(2)(p) (‘family hardship’). The appellant submits that it may be inferred that her Honour did not regard those matters as amounting to ‘exceptional hardship’, and therefore did not take them into account on sentence…”

116. The Crown submitted that Ahmad is clearly distinguishable from the present case. Rather than simply acknowledging a single factual matter, the sentencing judge in this case acknowledged the material, stated explicitly that he had regard to it, and articulated why it did not displace other countervailing considerations such as general deterrence. The Crown submitted that this was an orthodox and correct application of s 16A(2)(p) of the Crimes Act.

Consideration

117. This ground of appeal may be dealt with briefly.

118. There is nothing in the ROS which supports the inference that his Honour considered that family hardship needed to be “exceptional” before it could be taken into account. Indeed, his Honour expressly acknowledged that he had regard to the material before him, but that it could not displace other sentencing considerations such as general deterrence. There was no requirement that his Honour articulate the precise effect (if any) of family hardship on the final sentence to be imposed. Neither was there any requirement for him to cite Totaan, which appeared in the applicant’s written submissions on sentence.

119. The present case is, in any event, not analogous to Ahmad. In that case, the applicant had been sentenced before the decision in Totaan and it could be inferred from the ROS that the sentencing judge had acted upon the then conventional understanding that family hardship needed to be “exceptional” before it could be taken into account. That same inference is not available in the present case.

120. The Crown drew the Court’s attention to Lazarus v R (2023) 380 FLR 228; [2023] NSWCCA 214 (“Lazarus”), where Beech-Jones CJ at CL said at [5]:-

“Subsection s 16A(2) lists various factors that must be taken into account in the exercise of the sentencing function referred to in s 16A(1). As noted by Bell CJ in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (‘Totaan’), ‘nothing in s 16A(2) as a whole suggests any hierarchy of considerations or that varying degrees of importance should be placed upon each of the matters set out in subsection (2)’ (at [83]; emphasis in original). That observation was directed to the statutory provision as a whole applying as it does to all sentences for federal offences. However, like other judicial discretions, while the power to impose a sentence must not be unduly fettered, it must also be exercised in accordance with both statute and principle. Principles governing the exercise of the sentencing discretion are developed by this Court, other intermediate Courts of Appeal and, ultimately, the High Court. Unlike the approach that was overturned in Totaan concerning s 16A(2)(p) of the Crimes Act, principles such as those suggested in Porte concerning the weight to be generally attached to general deterrence in a particular class of cases or in De la Rosa concerning the weight to be attached to various factors in the case of mentally ill offenders, are consistent with the statutory provisions and do not unduly fetter the sentencing discretion.”

121. While the sentencing judge was required to have regard to “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants” in accordance with s 16A(2)(p) of the Crimes Act, as Lazarus makes clear, his Honour was also required to be guided by established sentencing principle. This includes the well-established principle that general deterrence is a significant factor in drug-importation offences: see R v Nguyen; R v Pham [2010] NSWCCA 238 at [72]; Wong v R*; Leung v R* (2001) 207 CLR 584; [2001] HCA 64 at [64]. It was open to his Honour (having taken the factor into account) to find that family hardship did not displace the weight to be attributed to general deterrence.

122. Accordingly, Ground 3 must fail.

Ground 4: Additional ground of appeal — error in the commencement date of the non-parole period

123. It was common ground between the parties that the non-parole period should have commenced on 9 December 2024 rather than 11 December 2024. It was foreshadowed during the hearing that the correction might be sought by the applicant relying on a further ground of appeal to the effect that the sentencing judge erred in the commencement date for the non-parole period. In correspondence with the Court, the applicant confirmed the addition of this ground of appeal, which was not opposed by the Crown.

124. In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 (“Leh**n”) at [72] Bathurst CJ said:-

“That is not to say that there will not be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the commencement and end date of the sentence or the date of the expiration of a non-parole period arrived at in the proper exercise of discretion or, for example, an error in the calculation of the effect of a discount for a plea or assistance to the authorities, where the extent of the discount to be allowed was reached in accordance with proper principles.”

125. See also RA Hulme J at [124]-[125] and Schmidt J at [129].

126. This is a case of mere arithmetical error of the type discussed in Lehn. The error can therefore be corrected without this Court being required to engage in a re-sentencing exercise as otherwise required by Kentwell v R (2014) 252 CLR 601; [2014] HCA 37: Greenyer v R [2016] NSWCCA 272 at [34]-[35]; Refaieh v R [2018] NSWCCA 72 at [83]; Diri v R [2019] NSWCCA 319 at [66]. As both parties have accepted that this error should be corrected by this Court, I propose to make an order adjusting the date of the commencement of the non-parole period.

127. I propose the following orders:-

128. Leave to appeal is granted.

129. Allow the appeal in respect of Ground 4.

130. Quash the sentence imposed by Judge Everson SC in the District Court on 11 December 2024. In lieu, sentence the applicant as follows:

(a) For the offence of attempting to possess an unlawfully imported commercial quantity of a border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth), sentence the applicant to a term of imprisonment of 4 years commencing on 9 December 2024, expiring on 8 December 2028. (b) For the offence of importing a commercial quantity of a border controlled drug contrary to s 11.2A(1) with s 307.1(1) of the Criminal Code Act 1995 (Cth), sentence the applicant to a term of imprisonment of 6 years commencing on 9 December 2025, expiring on 8 December 2031. (c) Pursuant to s 19AB of the Crimes Act 1914 (Cth), fix a non-parole period of 4 years commencing on 9 December 2024 and expiring on 8 December 2028. The applicant will be eligible for parole on 8 December 2028.

4. Otherwise dismiss the appeal.

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Amendments

10 July 2026

Typographical error in headnote corrected.