Nunez v R

The offences

1. A statement of agreed facts was tendered by the Crown and relied upon by the sentencing judge. They were to the effect that between 19 November 2019 and 31 January 2020 the applicant supplied prohibited substances to an undercover operative (UCO) who was acting pursuant to a controlled operation on nine occasions. The meetings were arranged using "Wickr" and "WhatsApp" (encrypted messaging applications), and each of the supplies was captured on video and audio surveillance recordings. In total, the applicant provided the UCO with 335.99g of heroin, 4,206g of GBL and 7.01g of methylamphetamine. He received $64,950 in return from the UCO.

Form 1: supply prohibited drug (attached to sequence 21)

1. On 19 November 2019, the UCO negotiated with the applicant via WhatsApp to purchase 100ml of GBL for $450. When they met, the applicant supplied 78.7g of the substance for $350.
2. The applicant told the UCO that he had four or five litres of "drink" at home, which he could sell for $1,200, and was also able to supply "eye" or methylamphetamine or ice also.

Sequence 21: ongoing supply of prohibited drug (GBL)

Form 1: supply indictable quantity of prohibited drug (methylamphetamine) (attached to sequence 21)

1. On 20 November 2019, the UCO negotiated with the applicant via WhatsApp and Wickr to purchase 1L of GBL and 7g of methylamphetamine. When they met, the applicant supplied 1,039g of GBL for $1,350, and 7.01g of methylamphetamine for $1,150 (the Form 1 offence). The applicant gave a $50 discount for each item. The ultimate purchase price was $2,400.
2. The applicant told the UCO that he could supply him with "heaps" of heroin and showed him a photograph of a block of the drug. In messages over Wickr, the applicant said he could supply ounces of heroin for $4,800 and plates (12 ounces) for $4,700, but that he would need to confirm prices.

Sequence 21: ongoing supply of prohibited drug (GBL)

Sequence 20: ongoing supply of prohibited drug (heroin)

1. On 28 November 2019, the UCO negotiated with the applicant via Wickr to purchase 1L of GBL for $1,350. The applicant offered the UCO a sample of heroin. When they met, the applicant supplied 1,033.5g of GBL and 0.5g of heroin for a total $1,300.

Sequence 21: ongoing supply of prohibited drug (GBL)

Sequence 20: ongoing supply of prohibited drug (heroin)

1. On 3 December 2019, the UCO negotiated with the applicant via Whatsapp to purchase 1L of GBL for $1,300 and an ounce (approximately 28g) of heroin for $4,800. When they met, the applicant supplied 961.8g of GBL and 28g of heroin for a total $6,100.
2. The applicant said he could "do a shit load" of "gear" and talked to the UCO about the quality differences in heroin for smokers and injectors.

Sequence 20: ongoing supply of prohibited drug (heroin)

1. On 18 December 2019, the UCO negotiated with the applicant via Wickr and Whatsapp to purchase an ounce of heroin for $4,800. When they met, the applicant supplied 27.82g of heroin for the agreed price. The applicant discussed supplying three more ounces of heroin to the UCO before Christmas and a 23L drum of GBL, which the UCO could on-sell at a greater price.
2. On 24 December 2019, the UCO negotiated with the applicant to purchase three ounces of heroin for $14,400. When they met, the applicant supplied 83.7g of heroin for the agreed price. They also discussed the availability of a drum of the GBL, profit margins and the potential for price rises.

Sequence 19: ongoing supply of prohibited drug (heroin)

1. On 2 January 2020, the UCO negotiated with the applicant to purchase three ounces of heroin. When they met, the applicant supplied the UCO with 83.8g of heroin (with a purity of 75 per cent). The UCO paid $14,400 and promised to pay an additional $300 on the next occasion.
2. On 9 January 2020, the UCO negotiated with the applicant to purchase three ounces of heroin for $14,700. When they met, the applicant supplied the UCO with 82.8g of heroin (with a purity of 73.5 per cent) together with a 0.2g sample of heroin. The UCO paid the applicant $14,700 and the $300 owing from the last transaction. They also discussed the purchase of 2L of GBL. The applicant said the GBL was too expensive and did not purchase any for the UCO to on-sell.

Sequence 19: ongoing supply of prohibited drug (heroin)

Sequence 13: supply commercial quantity of prohibited drug (GBL)

Form 1: supply prohibited drug (attached to sequence 20)

1. On 31 January 2020, the UCO arranged to purchase one ounce of heroin for $4,800 and 1L of GBL for $1,400 from the applicant. When they met, the applicant supplied 29.37g of heroin and 1,093g of GBL for a total $6,200.
2. The applicant was arrested by police as he walked away. Police found $6,200 in the underwear of the applicant and located eight resealable bags containing 4.48g of cocaine (the Form 1 offence).

Form 1: deal with property suspected of being proceedings of crime (attached to sequence 20)

1. Police located the applicant's girlfriend a short time later. She was in possession of the applicant's bag, which included identification documents, and his wallet which contained $1,555 in cash. The notes did not match any of the money previously given to the applicant in exchange for the supply of prohibited drugs.

The sentence proceedings

1. The proceedings on sentence took place on 22 October 2020. The applicant was aged 32 years at the time he committed the offences and 33 years at the time of sentence.

The Crown's evidence on sentence

1. The Crown tendered the agreed facts, the applicant's criminal and custodial histories, and a Sentencing Assessment Report.

Criminal record

1. The applicant's only previous conviction was for driving whilst suspended, recorded on 3 April 2018. The applicant received a bond (which was not current at the time of the present offences) and a licence disqualification period for that offence.

Sentencing Assessment Report

1. The Sentencing Assessment Report, dated 12 October 2020, described the applicant's family and social circumstances. The author noted that the applicant's mother confirmed he "maintains regular contact with his two children". The applicant reported having the ongoing support of his family and referred to his previous employment as truck driver and satisfactory reports regarding his work performance as a sweeper in custody on remand.
2. The report notes that the applicant directly linked his offending to his own substance abuse issues, which he said had started "at an early age" with cannabis and progressed to the substances he was abusing prior to his arrest. His use was initially a coping mechanism for his background of trauma. It increased during periods of stress and, in particular, after the recent dissolution of a relationship. His use escalated at the time of offending from using 1g to 5g of cocaine daily, as well as GHB and benzodiazepines.
3. The author of the report noted that the applicant "appeared to have insight into the factors underpinning his offending and … did not minimise his involvement or actions" and that the applicant had said that he had become "more acutely aware of the adverse impact of drug use upon the wider community" since entering custody.
4. The report assessed the applicant at a "medium" risk of reoffending according to the Level of Service Inventory - Revised (LSI-R) assessment tool.

The applicant's evidence on sentence

1. The applicant tendered a report of a psychologist, an affidavit sworn by his sister, Irene Nunez, an affidavit sworn by his former partner Rachelle Rae, and several testimonials from friends. In addition, the applicant gave oral evidence.

The psychologist's report

1. Oliver Brecht, psychologist, assessed the applicant via audio-visual link (AVL) on 18 September 2020. In his report, Mr Brecht gave an overview of the applicant's background. The applicant has one sibling, a sister, who is three years his senior. When he was 12 years old, his father was diagnosed with schizophrenia. The applicant recalled his father being violent towards his mother, his sister and him and constantly accusing his mother of being unfaithful. His father "tapped their phone lines" and eavesdropped on their conversations from under the house.
2. When the applicant was 15 years old, his mother divorced his father and moved away, taking his sister with her and leaving the applicant alone to care for his father. He did not blame them for leaving, because "they had it the worst when we lived together". His father was suicidal and often overdosed on alcohol and prescribed medications. He described routinely locking himself in the bedroom when his father would produce a knife whilst acting violently towards him.
3. The applicant left school at the end of year 10 in order to take care of his father, relying upon his youth allowance and other benefits from Centrelink to financially support them both. At the age of 18, he found it too difficult to continue to take care of his father and moved out of home. His mother and sister were supportive of him doing so.
4. At the age of 18, the applicant commenced his first significant relationship. He and his partner had a son and daughter who, at the time of the psychologist's report, were 13 and 12 years old respectively. He stopped taking drugs for about 6 or 7 months before his son was born.
5. He was first employed when he was aged 18, as a scaffolder. He worked in that field for three years, leaving for a less demanding workplace due to his partner struggling to take care of their children alone. Between the ages of 21 and 25, he worked at a logistics company, which had more regular hours. His relationship broke down when he was 24 years old, due to personality differences and his drug use. However, they remain amicable for the sake of the children. The applicant remained in contact with the children whilst in prison on remand. Following the breakdown of the marriage, his work suffered, leading to a demotion and ultimately his resignation.
6. When aged 25, the applicant commenced a new relationship, with a woman to whom he was married for three years. The relationship deteriorated because she could not have children and tried to prevent him from visiting his own children. He became depressed, which led to a worsening of his drug use. They divorced, and thereafter until his arrest he resided with his mother.
7. The applicant told Mr Brecht that he smoked cannabis from the age of 12, "to escape from the reality of his family". Between the ages of 14 and 24, every weekend he would regularly take ecstasy, cocaine and consume a large quantity of whiskey. From the age of 26 until his arrest, the applicant used cocaine, ecstasy and gamma hydroxybutyrate on a daily basis, as well as abusing Xanax and Valium (benzodiazepine), in order to counter the stimulant effect of the cocaine and ecstasy, so that he could relax and sleep at night. Mr Brecht noted that the applicant stated: "… that the main purpose of abusing such large amounts of drugs was to avoid 'feeling not worthy', that 'I'm shit', and to 'escape from my emotions'."
8. He worked as a truck driver between the ages of 27 and 30, quitting that employment to sell drugs at the suggestion of his drug dealer, to whom he had accrued a significant "drug debt" he needed to repay.
9. The applicant denied using any drugs or alcohol whilst in prison.
10. The applicant said he was diagnosed with a major depressive disorder when he was 25 years old, following his divorce. He recalled being prescribed with an antidepressant and attended counselling sessions. Mr Brecht noted that the applicant's medical records in 2015 consistently indicated diagnoses of anxiety and depression, which was treated with an antidepressant medication.
11. When aged 24 or 25 years old, the applicant self-harmed by burning his arm with a heated butter knife. Whilst on remand, he was prescribed antidepressants and was seeing a psychologist for treatment. Mr Brecht recorded that the applicant stated: "… that he attended chaplain services every week and had completed a number of courses, including Positive Lifestyles course (which taught him assertiveness and various prosocial skills). He stated that his self-esteem and self-efficacy in leading a prosocial lifestyle had increased since entering prison and engaging with the above services. [By] the same token, he stated that he struggled with living in prison, especially due to the visitation restrictions due to the pandemic. He became teary when he stated that he missed his family (being his children)."
12. The applicant told Mr Brecht that he was committed to overcoming his drug addiction and would continue his recovery by attending regular therapeutic interventions upon his release.
13. Mr Brecht diagnosed the applicant as having an Unspecified Major Depressive Disorder, a Severe Stimulant Use Disorder (in early remission in a controlled environment) and Severe Sedative Use Disorder in early remission (in a controlled environment).
14. Mr Brecht assessed the applicant as having: "… a lower risk of reoffending provided that he continued with long-term therapy to improve his emotion regulation skills and to avoid unhelpful short-term reliefs, such as drug abuse."

The applicant's sister's affidavit

1. The applicant's sister confirmed much of the applicant's background as that recorded by Mr Brecht. She stated that it was the applicant's decision to remain at home when she and her mother left, because he felt that he had to look after their father, despite how he had treated them. As to the impact upon him of his arrest and incarceration, she stated: "Upon his arrest and incarceration, [the applicant] has expressed to me how his life hit rock bottom and that his life spiralled out of control. He has reflected deeply as to the way his drug use ultimately put him in gaol and away from his children and family. Since being in custody, [the applicant] calls mum and I daily. Prior to Covid-19 restrictions, I was seeing [the applicant] on alternate weekends, as the other weekends his children booked to see him. Once the Covid-19 restrictions were in place, we only had phone calls with [the applicant] (on a daily basis) until AVL visits commenced. Again, I have alternate weekly AVL visits with [the applicant]; with the other week left for his children. I have been present for some of the visits with his children and [the applicant] always tells them to listen to their mother and stay on the right path, so they do not end up in here (jail). I know that [the applicant] harbours a lot of regret for his actions, as he has not set the right example for his children and that he has missed a lot of time with them as a result of his offending behaviour. He reflects upon this in our many telephone conversations and visits. … I verily believe that [the applicant] is a loving, caring and genuine brother to me, son to mum and father to his children. …"

The affidavit of the applicant's former partner

1. In her affidavit, the applicant's former partner confirmed the applicant's history of their relationship and that they remained amicable for the sake of the children. She stated: "[The applicant] was and remains a fantastic father. Whilst we were together, he would also assist me with the children when I had to work and he was not at work. Since our relationship has ended, he has been predominantly a supportive father. The children were seeing him every alternate weekend, after he was [incarcerated]."
2. Ms Rae went on to describe the effect of the applicant's incarceration upon their son, who admired the applicant "greatly": "Our son became extremely withdrawn after his father's arrest and he began to self-harm. At 13 years of age, this came as a complete shock to me and I know it affected [the applicant] greatly, as he felt responsible for it. Our son was cutting his arms with glass and he was hospitalised for it and was ultimately diagnosed with depression in or about March 2020 and prescribed anti-depressants. He began to fall behind in his studies, as a result. When the Covid-19 restrictions were put in place, all face to face visits were suspended and remain suspended at this time. [The applicant] has had no face to face visits since approximately March 2020 and this made our son's depressive state worse. [The applicant] would call me through the week and speak to the children over the weekend, as they are usually at school during the week when he can make phone calls. Once AVL visits commenced, our children have had numerous AVL visits with [the applicant]. We still maintain contact through phone calls. I believe this has assisted in our son's recovery."

The character references

1. Three character references by friends of the applicant were tendered as evidence of his otherwise good character, his remorse and commitment to his rehabilitation and his devotion to his family. In relation to the latter aspect, one friend commented: "[The applicant] has spoken to me and expressed remorse for his actions and is also ashamed, specifically he has expressed wanting to better himself for his children."
2. Another friend said, as to the applicant's pre-arrest commitment to his children: "He co-parents his two children whilst maintaining a good relationship with their mother and will ensure they stay with him fortnightly and more frequently during school holidays. … [The applicant] has told me that he is extremely ashamed of his actions and would like the opportunity to repent and teach his children the importance of accountability and forgiveness."
3. The third friend stated: "I can tell [the applicant] is remorseful for his actions and wants to better himself for his children's sake and his own. He realises the time spent in jail he will never get back but knowing [the applicant], he will spend the rest of his life making up for lost time with his family and friends. … [The applicant] is a great father to his two children. I envy him and how good of a dad he is. There is no limit and no length that he will [not] go to, to make sure his children are happy, which is why he feels he has let them down by his offending behaviour. I know myself, if I am to have children one day, if I can be half the father he is, I know I will do good in life."

The Crown's submissions on sentence

1. In brief written submissions, the Crown submitted that the objective seriousness of sequence 13 fell "below or at the mid-range of offences of the type" and for sequences 19, 20 and 21 it fell "within or just above the mid-range of offences of this type". Attention was drawn to the need for general and specific deterrence, the significance of the maximum penalty and, in the case of sequence 13, the standard non-parole period, and the aggravating factor of the degree of planning that was involved in the offences. This latter submission was withdrawn by the Crown in the course of oral submissions.
2. The Crown noted the applicant's strong subjective case, including his remorse, his absence of a significant criminal record, his assessed medium-level risk of reoffending according to the LSI-R, his unfortunate family background and his use of drugs from when he was 12 years old.
3. The Crown submitted that the Court would be "guarded" about the applicant's prospects of rehabilitation in view of his long-term drug use.

The applicant's submissions on sentence

1. The applicant submitted that the applicant's motive for committing the offences, that is, to repay his drug debt, and the modest financial reward that he received for each transaction reduced his moral culpability. The applicant relied upon the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The applicant submitted that his need for rehabilitation and treatment, his mental condition and the fact that it would be his first sentence of imprisonment, warranted a finding of special circumstances. As to objective seriousness, the applicant submitted that "the offending does not fall within the middle range for the type of offence which may be contemplated for a commercial supply".

The applicant's submissions concerning the impact of the Covid-19 pandemic

1. In his written submissions to the sentencing judge, under a heading "Subjective material and special circumstances", and a sub-heading "Mental Health, other health conditions and COVID-19", the applicant submitted: "There are a number of COVID-19 restrictions in place (see: WHO Interim Guidance and NSW Department of Communities & Justice, Correctives COVID response), and the difficulty in maintaining meaningful familial connections is a factor which should be considered on sentence. Furthermore, with the potential for further outbreaks, the Court may not be satisfied that adequate rehabilitation programs are available in custody, particularly where prolonged lockdowns appear to be the most effective method to combat the spread of the SARS-CoV-2 virus. [The applicant] demonstrates a genuine need for rehabilitation, and the presence of the virus may mean that access to such programs is far more difficult."

The applicant's evidence on sentence

1. Due to the Covid-19 restrictions in place at the time, the applicant gave evidence via AVL from prison at his sentence hearing. He confirmed that the history he gave to the author of the sentencing assessment report and to Mr Brecht was truthful. His evidence in chief canvassed his family history, in particular, his exposure to his father's violence, which included witnessing his father render his sister unconscious by a blow to her head. He thought it was on his fourteenth birthday that his mother and sister moved out, leaving him behind with his father. The applicant explained that he felt that he had to stay, because he was his father.
2. The applicant said when he agreed to supply drugs, his drug debt had reached the sum of about $50,000.
3. The applicant was questioned about the degree of contact he had with his children whilst on remand. He said: "Q. Now, you - since entering custody in January, do you have much contact with your family? A. Yes, I do. Q. You might not be able to see them all, but there are - you know there are nine family members here in Court, today? A. Yeah, I can see them all, yeah. Most of them. Q. And your son, have you had much contact with him? A. Past this Corona virus, the - instead of the AVL calls, or a phone call, that - that's about it. Q. How often do you speak to him? A. I probably speak to him once a fortnight, and probably every day on the -every weekend on the phone, and once a fortnight on AVL visits. Q. When was the last time you saw him in person? A. It would be in March."
4. As noted, the date of the applicant's evidence was 22 October 2020, so the effect of his evidence was that he had not seen his son for about seven months, due to the Covid-19 restrictions.

The remarks on sentence

1. The sentencing judge recited the charges and recited the agreed facts and summarised the subjective case, noting the applicant's childhood family history, his early introduction to prohibited drugs, his mental health issues, the opinions expressed in the sentencing assessment report, the report of Mr Brecht and the affidavit evidence. His Honour said: "I am satisfied [the applicant] has shown remorse and has demonstrated insight into his offending behaviour. I found him to be an impressive witness and was candid about his offending behaviour and would accept he has a genuine desire to address his drug use and mental health issues. I am satisfied [the applicant] has good prospects of rehabilitation, although this is very much contingent upon appropriate professional support. [The applicant] has only one traffic offence on his record where he was given a bond. In the circumstances, I am satisfied he is of otherwise good character which I will take into account on sentence. I am also satisfied [the applicant] has suffered significant social deprivation as a child which does reduce his moral culpability. I would give less weight to the principles of general and specific deterrence, although these do remain relevant considerations."
2. The sentencing judge found that the planning involved in the offences was "not particularly sophisticated", so that the degree of planning and financial reward were not aggravating factors. His Honour assessed the level of objective seriousness for sequences 19 and 20 as being "about the mid-range". For sequences 13 it was "towards the lower end of objective seriousness" and for sequence 21 it was "about the mid-range". His Honour said there would be "a modest increase" in the sentences of the relevant substantive offences for the Form 1 matters.
3. In the context of referring to the applicant's evidence, the sentencing judge referred to the use of AVL to facilitate family contact: "He said he was willing to undertake courses and treatment. At present he said he was taking antidepressants whilst in custody. He had contact with family via phone calls and AVL visits but had not physically seen anyone since March this year." And later: "His previous partner … also provided an affidavit to the Court. … Their son became extremely withdrawn after his father's arrest and began to self-harm, however, [the applicant] continues to make phone calls whilst in prison and the AVL link has assisted in his son's recovery."
4. Under the sub-heading "Consideration", which was almost immediately after the latter passage, his Honour referred to matters relevant to fixing the sentence: the early pleas of guilty; findings of remorse; the applicant's prior good character; his good prospects of rehabilitation; and his reduced moral culpability due to his disadvantaged upbringing. His Honour identified aggravating and mitigating factors, fixed the levels of objective seriousness and made a finding of special circumstances, stating the reasons for that finding. His Honour did not refer to the impact of the Covid-19 pandemic on the applicant's conditions of custody in any part of that section.

The applicant's submissions

1. The applicant notes that in the first few weeks following his arrest on 31 January 2020 on remand, he experienced normal custodial arrangements, including in-person visits from his family, in particular, his two children. However, by March 2020, personal visits were suspended due to the Covid-19 pandemic and other onerous conditions prevailed for prisoners. In time, AVL access was introduced for prisoners to communicate with their families. As noted by the applicant in his evidence at the sentence hearing, he had not had an in-person visit from his children since March 2020 and was dependent on AVL contact.
2. The applicant referred to McKinnon v R [2020] NSWCCA 106, at [32], in which this Court noted that an absence of social and family visits due to the Covid-19 pandemic is a relevant consideration in the sentencing exercise: "The applicant, in common with other prisoners in New South Wales during the COVID pandemic, has been in physical isolation from the outside world, although more recently, he has been able to have video contact with his family. The evidence on resentence demonstrates that the effect of the applicant's imprisonment on his wife and children has been significant. Whilst none of this evidence is evidence of extraordinary hardship, the more onerous conditions of incarceration due to the pandemic nonetheless should be taken into account in sentencing: Scott v R [2020] NSWCCA 81."
3. The applicant submitted that, in the absence of any implied or express reference to it, one could not assume that the sentencing judge reflected the impact of the Covid-19 restrictions upon the applicant's conditions of incarceration in the sentence judgment; see SF v R [2022] NSWCCA 216, at [92]. At the time of sentence, it was not possible to predict for how long those conditions would continue.

The respondent's submissions

1. The respondent submitted that it was incumbent upon an offender who seeks to ameliorate a sentence because of a feature that has an adverse impact upon conditions of custody, to refer to evidence that supports it: Wass v R [2022] NSWCCA 143, at [69]. In this case, the only evidence before the sentencing court pertained to the impact of the Covid-19 pandemic on in-person visits, which the sentencing judge acknowledged in the passages extracted at [65] above. Based upon those passages, the respondent submitted: "The sentencing judge accordingly had regard to the impact of Covid-19 on the manner in which the applicant was able to communicate with his family."
2. The respondent submitted that the applicant's contention that the Covid-19 restrictions "may" cause difficulties in accessing programs was contrary to the evidence, since the applicant informed Mr Brecht that he was attending chaplain services and courses: see the passage extracted at [44] above. Thus, the respondent submitted that the sentencing judge had not erred in not taking into account a submission that the applicant's access to programs was impeded. The fluidity of the impact of the pandemic on prison conditions obliged the parties to ensure there was "current and reliable evidence of any adverse consequence contended for if a sentencing court is to take the feature into account when determining the sentence to be imposed": Wass at [71].
3. The respondent submitted in the alternative that, if error has been established, no lesser sentence is warranted.

Consideration

1. The applicant had been an engaged parent to his children throughout their lives. At the time of his remand, as they were entering adolescence, his son was traumatised by his father's removal from the community and his life. It is apparent from the evidence, particularly of the applicant's former partner and the psychologist's report, that the applicant's continuing relationship and contact with his children and their welfare through the period of his incarceration was an essential aspect of his well-being, particularly in light of his mental health issues.
2. Counsel for the applicant commenced his oral submissions to the sentencing judge by stating that he relied upon his written submissions and would not repeat them, thereafter responding to the Crown's written submissions.
3. In his written submissions, in the passage extracted at [58] above concerning the Covid-19 pandemic, the applicant submitted that it had a current adverse impact on conditions of custody and the potential for a more severe future impact.
4. That future impact concerned the presciently-observed prospect of "further outbreaks" and their effect on the availability of programs, since by then it was known that "prolonged lockdowns" were the most effective method to combat the spread of the virus. At that point, as the applicant made clear in the submission, it was not known what the future impact on conditions of custody would be. For that reason, in my view, the sentencing judge did not fall into error by not attempting to reflect the uncertainty in the sentence, although it transpired to be an accurate concern.
5. In relation to the then-current impact, the applicant's submission was that the "difficulty in maintaining meaningful familial connections" as a result of the prison restrictions was a relevant consideration on sentence. The Crown did not contest that submission.
6. The two references by the sentencing judge in the remarks to the use of AVL for family contact, extracted at [65] above, demonstrate that his Honour was conscious of the evidence of the loss of in-person contact but it was not identified as a factor in the "consideration" part of the remarks that was relevant to the formulation of the sentence.
7. In R v Pickard [2023] NSWCCA 7 at [90], N Adams J, Garling J and Adamson J (as her Honour then was) agreeing, said: "Clearly, if the question of special circumstances is raised before the sentencing judge, a failure to avert to that submission in the sentencing reasons may give rise to an inference that it has been overlooked, which, if established, could amount to House v The King error. But that is a different proposition to imposing an obligation on sentencing judges in every case to provide reasons when declining to find special circumstances (whether such a finding is sought or not)."
8. I infer that the issue raised by counsel for the applicant in his written submissions was overlooked by the sentencing judge and, in view of its significance, in the subjective circumstances of this case, that it did constitute error. Accordingly, I am satisfied that the ground is made out.
9. I am satisfied that a lesser sentence is warranted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43]. While I consider that the sentence imposed was otherwise impeccable, once re-sentence is considered, regard must be had to the applicant's current situation which incorporates his circumstances in prison since his sentence in November 2020. In my view, having regard to the evidence before the Court, those circumstances were so severe that they can only result in a lesser sentence.

Re-sentence

1. In an affidavit by the applicant dated 24 November 2022 that was read at the hearing, the applicant explained what had occurred to him in the prison system following his sentence.
2. At the time of sentence, the applicant and other prisoners were not permitted in-person or AVL visits; they were only permitted phone calls. About a week after his sentence (5 December 2021), he was transferred to Bathurst Correctional Centre (Bathurst). He was placed in quarantine for 14 days, because he was being transferred to a different facility. In that period, he was not permitted any phone calls or visits, or to leave his cell other than every three or four days to have a shower for less than 15 minutes. He was then released into the main population but was not permitted any in-person or AVL visits, only one phone call per day or every second day.
3. He had minimal phone contact with his children and had not seen them, either in person or by AVL, since about May 2021, "which has caused [him] a great sense of sadness". The applicant's children and their mother moved interstate in February 2022.
4. The applicant remained at Bathurst until 1 March 2022. In that 16-month period, the prison was almost always in lockdown, for periods usually ranging from 1-2 weeks. The longest lockdown was one month. During those times, they were not permitted any in-person or AVL visits.
5. The first AVL visit the applicant had with his mother, sister or partner was in about August 2021. It was the first time he had seen them since his sentence, which I note was a period of about 8 months.
6. In about February 2022, during a two-week lockdown, the applicant tested positive to Covid-19 and was confined to his cell for the fortnight, unable to leave, even to have a shower. His food was slid under the door, to ensure zero contact. He said he became: "… extremely ill. I had high fevers, shivering, a sore throat, lethargy, a runny nose and headaches. I was not provided any toilet paper or tissues. I was not provided any medication for medical assistance."
7. On 1 March 2022, he was transferred to the Covid wing at the MRRC at Silverwater. He was required to quarantine for the 16 days he was there. He had no buy-ups and limited food. He was given one meal a day, usually at noon, passed through his door. He was able to call his family once during that 16-day period.
8. On about 15 March 2022, the applicant was returned to Bathurst and was quarantined for another 14 days, during which he was kept in his cell and permitted to leave once per week to have a shower and a phone call with his family. Snap lockdowns continued. In about April 2022, AVL visits resumed and in-person visits in about mid-August 2022, which was when he had his first in-person visit with any of his family since the pandemic began. As at November 2022, his family and partner were seeing him on alternative weeks.
9. The applicant referred to courses that he had completed, in hospitality in April 2021 and in digital and media technology in September 2021. Employment opportunities in the prisons were unavailable until August 2022, due to the pandemic. In that month, he obtained employment as a clerk, handling the logistics for the packing of chemicals to be used in NSW prisons. He said: "Not being able to work made me anxious, agitated and depressed, as I was not able to do anything constructive with my time. Since being able to work, it has made coping in jail much easier, as I have a sense of normality and routine."
10. And later: "The pandemic and the restrictions that stemmed from it, as well as not being able to see my kids, has left me with anxiety and depression. I have been prescribed fluoxetine by the psychologist that I have been seeing in custody for the last one and ½ years. I am supposed to see the psychologist every 6 to 8 weeks, but it has been difficult to get into see her over the last year with the frequent lock ins."
11. With the exception of special circumstances, I would make the same findings as the sentencing judge did as to the 25 per cent discount for the pleas of guilty entered in the Local Court, remorse, the applicant's prior good character, his prospects of rehabilitation, his moral culpability, aggravating and mitigating factors and the respective levels of objective seriousness. I note that neither party has contested those findings, and I consider them to be entirely appropriate.
12. I would find that special circumstances applied to the ratio of the additional term to the non-parole period because of the need for on-going treatment of the applicant for his mental health and drug abuse issues upon his release, but also because of the onerous conditions of custody that arose because of the Covid-19 pandemic, as described by the applicant in his affidavit, which I note are not the subject of dispute by the respondent.
13. Taking into account the four Form 1 matters, I would fix an aggregate sentence with the same total sentence as did the sentencing judge of 7 years and 9 months, backdated to commence on 31 January 2020 and to expire on 30 October 2027, but with a lower aggregate non-parole period, being 4 years, to expire on 30 January 2024.
14. I would make the same findings as the sentencing judge did as to the indicative sentences, which are, for sequence 13, 3 years and 9 months imprisonment, reduced by 25 per cent to 2 years 9 months with a non-parole period of 1 year 8 months and for each of the other three counts, an indicative sentence of 5 years, reduced by 25 per cent to 3 years and 9 months.

Orders

1. I propose the following orders: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed by Townsden DCJ on 27 November 2020. (4) Resentence the applicant to an aggregate sentence of 7 years and 9 months, backdated to commence on 31 January 2020 and to expire on 30 October 2027, with an aggregate non-parole period of 4 years, to expire on 30 January 2024.

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