[2013] HCA 37
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638
[2012] HCA 1
Clarke v R [2015] NSWCCA 232
254 A Crim R 150
CMB v Attorney General for NSW (2015) 256 CLR 346
[2015] HCA 9
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638[2012] HCA 1
Clarke v R [2015] NSWCCA 232254 A Crim R 150
CMB v Attorney General for NSW (2015) 256 CLR 346[2015] HCA 9
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
Frlanov v R [2018] NSWCCA 267
Green v The QueenQuinn v the Queen (2011) 244 CLR 462[2011] HCA 49
Griffiths v The Queen (1977) 137 CLR 293[1977] HCA 44
Hello v R [2010] NSWCCA 311
Hordern v R [2019] NSWCCA 138278 A Crim R 353
Hoskins v R [2016] NSWCCA 157
House v The King (1936) 55 CLR 499[1936] HCA 40
Hunt v R [2021] NSWCCA 192
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
La v R [2021] NSWCCA 136
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259[1996] HCA 6
Parente v R (2017) 96 NSWLR 633[2010] NSWCCA 49
R v Kassir [2020] NSWCCA 88
R v NguyenR v Pham [2010] NSWCCA 238205 A Crim R 106
R v O'Donoghue (1988) 34 A Crim R 397
R v Quinlin [2021] NSWCCA 284
293 A Crim R 253
R v Reeves [2014] NSWCCA 154
243 A Crim R 559
R v Webb [2004] NSWCCA 330
149 A Crim R 167
Reeves v The Queen [2013] HCA 57
88 ALJR 215
Waterways Authority v Fitzgibbon [2005] HCA 57
Judgment (18 paragraphs)
[1]
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Monardo Legal (Respondent)
File Number(s): 2021/88833
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Citation: [2024] NSWDC 79
Date of Decision: 21 March 2024
Before: Scotting DCJ
File Number(s): 2021/88833
[2]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 21 March 2024, the respondent was sentenced in the District Court after pleading guilty to an offence of aiding and abetting an attempt by others to possess a commercial quantity of an unlawfully imported border-controlled drugs, namely cocaine, contrary to ss 11.1(1), 11.2(1) and 307.5(1) of the Criminal Code (Cth). That offence carried a maximum penalty of life imprisonment and/or a penalty of 7,500 Commonwealth penalty units.
The respondent was sentenced to three years' imprisonment, backdated to commence on 22 September 2023 and expiring on 21 September 2026. The sentence was backdated to take account of a period of eighteen months of onerous bail conditions during his three years on bail while the prosecution was pending. The sentencing judge further ordered, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that the respondent be released immediately after having served six months of the sentence, and upon entering into a recognizance in the sum of $1,000 to be of good behaviour for five years. The effect of the sentence was that other than for two days following his arrest before he was granted conditional bail, the respondent was not required to serve any part of the custodial portion of the sentence.
The Director of Public Prosecutions of the Commonwealth appealed under s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on the ground that by reason of its backdated commencement the sentence was manifestly inadequate.
The issues before the Court were:
whether the sentencing judge erred by finding that the more onerous period of the respondent's bail conditions amounted to pre-sentence custody, and backdating the sentence to take it into account;
alternatively, whether the sentencing judge erred by finding that the respondent's bail conditions amounted to quasi-custody, such that the sentence could be backdated; and
if so, whether this Court's residual discretion not to intervene had been negated and the Court should proceed to re-sentence.
The Court held (per Campbell J, Ward P and Button J agreeing), dismissing the appeal:
As to Issue (1):
At [38]: the sentencing judge's reference to "pre-sentence custody" in his reasons, when read fairly and as a whole, is a slip intending to refer to "pre-sentence quasi-custody". Logically, had the sentencing judge erred by treating the respondent's time on bail as actual pre-sentence custody, his Honour would have backdated the commencement of the sentence for the full eighteen months during which the respondent was subject to the more onerous bail conditions pursuant to s 16E Crimes Act 1914 (Cth) picking up ss 24 and 47(3) Crimes (Sentencing Procedure) Act 1999 (NSW) as surrogate federal law.
As to Issue (2):
At [44]: it was not open to the sentencing judge to conclude that the period during which the respondent was subject to more onerous bail conditions amounted to quasi-custody so as to justify backdating the commencement of the sentence by six months. Applying the test formulated by Price J in R v Quinlin (2021) NSWCCA 274; 293 A Crim R, and Garling J's reasoning in La v R [2021] NSWCCA 136, the conditions of bail the respondent was subject to, without more, could not constitute quasi-custody.
As to Issue (3):
At [67]: While persons may usually expect to receive a custodial sentence for drug trafficking offences contrary to the Criminal Code (Cth), there is no "presumption" in that regard: the reasoning in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 applied. Notwithstanding this Court's finding of error (Issue 2), having regard to the impressive and substantial progress towards rehabilitation the respondent has made, as well as the deleterious impact the delay has had on the respondent's mental health condition, the Court should exercise discretion not to intervene.
Ward P (at [1], Button J agreeing at [69]) expressed a 'firm view' that the offending warranted a custodial sentence, particularly so in circumstances where the sentencing judge's error (as to Issue (2)) had resulted in an inappropriately short period of custody. However, in the circumstances explained by Campbell J (at [64]-[67]), Ward P (Button J agreeing) held that the Crown has not negated this Court's exercise of the residual discretion not to interfere.
[3]
JUDGMENT
WARD P: I agree with Campbell J that error has been established in relation to Ground 2 but that the appeal should be dismissed in the exercise of the residual discretion not to interfere with the sentence imposed. As to the latter, I am firmly of the view that the offending warranted a custodial sentence. In those circumstances the effect of the error has been to result in an inappropriately short period of custody. However, in all the circumstances explained by Campbell J, I am not persuaded that the Crown has negated the exercise of the residual discretion not to interfere.
CAMPBELL J: The Director of Public Prosecutions of the Commonwealth appeals under s 5D Criminal Appeal Act 1912 (NSW) from the sentence passed on the respondent by his Honour Judge Scotting in the District Court on 21 March 2024. After his committal and before trial the respondent pleaded guilty to a single count on an indictment dated 21 February 2023 pleaded in terms that he:
"Between about 27 February 2019 and 13 March 2019, at Sydney and elsewhere in the State of New South Wales, did aid, abet, counsel or procure the commission of an offence, namely the attempted possession of a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity."
The offending was contrary to ss 11.1(1), 11.2(1), and 307.5(1) of the Criminal Code (Cth). The sentencing judge sentenced the respondent under Crimes Act 1914 (Cth) as follows (AB 59; [2024] NSWDC 79 ("SJ") at [104]-[107]):
"Kyle Butler is convicted.
Taking into account the discount for the plea of guilty, I impose a term of imprisonment of 3 years to date from 22 September 2023 and expiring on 21 September 2026.
The offender is to be released on 21 March 2024 after having served 6 months of the sentence, and on entering into a recognisance in the sum of $1,000 to be of good behaviour for 5 years. The further conditions of the recognisance are:
(a) the offender accepts supervision by an officer of Community Corrections;
(b) the offender obeys all reasonable directions from Community Corrections;
(c) the offender is to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.
If the offender fails to comply with the conditions of the recognisance release order, further action may be taken against him. This may require the offender to return to Court."
[4]
The Facts of the Offending
The facts relevant to the respondent's offending were the subject of a statement of agreed facts tendered in the proceedings on sentence. What follows is a summary of the salient features of the offending taken from the sentencing judge's reasons. Five known co-offenders entered into a conspiracy to take possession of a commercial quantity of cocaine to be imported from Mexico concealed in aluminium ingots. They were Laurie Barkl, Raymond Dumbrell, Kevin Theobald, Branislav Grncarski and Lloyd Keen. Keen was an employee of the respondent working in his business from premises at Bankstown Aerodrome. Keen had first worked in the business while on day release during a previous drug-supply sentence. The respondent kept him on after he was released to his parole.
Certain preparatory work for the conspiracy was undertaken by the co-offenders between June and September 2018. The cocaine the subject of the charge, which in its pure form weighed approximately 149.3 kilograms, was concealed within certain ingots forming part of a consignment of 1890 aluminium ingots packed on to 18 pallets which arrived by sea in a shipping container at Port Botany on 5 February 2019.
Australian Border Force officers inspected the consignment on 6 February 2019 and detected anomalies. The consignment was found to contain a white substance which presumptive testing indicated was cocaine concealed inside 188 of the ingots which, unlike the rest of the consignment, were hollow. Australian Federal Police officers deconstructed the consignment on 7 February 2019. The ingots containing the cocaine were removed. Each of those ingots was of distinctive appearance in as much its top had been painted silver with a glossy appearance when compared to the other solid ingots which were matt grey in appearance.
The earliest evidence of any involvement of the respondent was on 27 February 2019 when an employee of a transport company telephoned him to confirm arrangements for the delivery on the consignment. This conversation was lawfully intercepted and recorded. The respondent was not then in his workshop, but he indicated that Keen would be present and would attend to the unloading. He expressed surprise about the size of the consignment, saying, "something seems a bit odd about that".
While not fully detailed as to time and place, it is clear that at some stage prior to the delivery the respondent had agreed with the co-offender, Theobald, to let an area of his workshop for storage of the ingots. He was to receive rent of $100 per week for each of the 18 pallets. While suspicious of Theobald's explanation for temporarily requiring the storage space, the respondent told the forensic psychologist who examined him for the purpose of preparing a report for the proceedings on sentence that he chose not to "ask any questions" (SJ [68]).
[5]
The Respondent's Subjective Case
The respondent was 36 years old when he offended and 40 years old when sentenced. He was the youngest of three children born of his parents' union, but they separated when he was four and he had very little contact with his father until he left school and took up a metal fabrication apprenticeship with him. He was very close to his sister who tragically died following a protracted illness in 2015 at the age of 36. He met his former wife in 2011, they married in 2015 and have a six-year-old daughter.
His father retired in 2017 leaving the respondent to take care of the business, which greatly increased his workload. His marriage deteriorated and they separated in 2019, against his wishes. His wife sought to deny him access to his daughter and the great change in his personal circumstances brought about by the breakdown in his marriage led to him suffering an adjustment disorder with mixed anxiety and depressed mood. He started drinking too much, using cannabis daily and ice weekly. In early November 2018 his condition was such that he presented himself to a public hospital for a mental health assessment. I observe, this appears to precede the actual breakdown of his marriage.
He was still abusing substances when he offended, but as at the sentencing hearing he was in sustained remission from his Substance Use Disorder. The respondent's poor mental health and his substance abuse impaired his judgment around the time of the offending.
There was a degree of extra-curial punishment involved as he lost lucrative contracts with two large governmental organisations and a regional airline because of this charge which adversely affected his security rating.
[6]
Submissions at First Instance
Counsel for the Crown and the respondent at first instance both handed up detailed written submissions, inter alia, addressing the mandatory s 16A(2) Crimes Act factors, so far as they were relevant.
[7]
Submissions for the respondent
In writing, counsel for the respondent referred to the two days of pre-sentence custody which must be taken into account, emphasised the requirements of individual justice and the options available to the court including "in particular s 19AC of the Crimes Act 1914 [providing] for recognizance release orders for the whole or any portion of the sentence of three years or less" (AB 266). A sentence only involving lengthy supervision and intervention in the community in the interests of the respondent's continued rehabilitation was urged upon the court. That is to say, a sentence of three years or less with immediate release under a recognizance release order ("RRO") was sought. Orally, reference was made to "restrictive bail conditions" to which the respondent had been subject. Senior Counsel said (AB 23.25-30):
"…we cannot say that they are the most rigorous bail conditions, but they certainly are restrictive and over a period of time, which is some three years since his arrest."
In furtherance of the application for a RRO, Senior Counsel also argued (AB 28.15-30):
"That leads one to have to give some consideration if there is to be a custodial portion of the sentence or possibly might be as to what utility it could perform after, for instance, such a delay as has occurred in this case. It's not a non-parole period.
… What would be achieved now to the community's benefit of requiring him to spend a period of time in custody in punishment for getting involved with others committing the serious offence that he aided when he became involved with them through apparently, and what is conceded to be, an opportunistic association rather than any planned endeavour on his part.
[8]
Submissions for the Crown
Counsel appearing for the Crown in written submissions referred to R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72] where Johnson J set out a summary of the principles governing sentencing for serious drug importation offences. Reference was also made to the judgment of Bathurst CJ in R v Kassir [2020] NSWCCA 88. Learned counsel also referred to the Court's power to backdate a sentence to commence in accordance with the provisions of s 47(3) Crimes (Sentencing Procedure) Act 1999 (NSW) ("State Act") which is picked up and operates as federal law by dint of s 16E Crimes Act. Counsel submitted that "no other sentence but a term of imprisonment with a non-parole period is 'appropriate'" (AB 240, [66]).
In oral submissions, counsel said (AB 35.40):
"In terms the delay, again that was an aspect the Crown accepts. In terms of the offender being on bail, which I would suggest is considerably onerous on him for periods of time in respect of the reporting, seven days and five days with curfew. I believe the curfew is 6 pm to 6 am until 11 October and then it changed to 9 pm to 6 am" (My emphasis.)
When the sentencing judge observed that the absence of re-offending in the five years since the respondent's arrest and prior to sentence was "a positive factor", counsel responded (AB 36.20-25):
"Yes, also no issues with his bail. That might speak to his prospects as well. In terms of disposition, it is the Crown's position that this is a case that requires fulltime imprisonment with a non-parole period. And as your Honour would know in the Commonwealth scheme that means the head sentence three years or above (sic)."
[9]
The Reasons for Sentence
The sentencing judge was satisfied that while the case was an example of a substantial prohibited drug offence, the amount being more than 74 times the threshold amount for a commercial quantity of cocaine, there was no evidence that the respondent was aware of the precise quantity, although "the method of packaging suggested that [the respondent] was aware that the quantity of the drug was significant" (SJ [81]). He was also present when Theobald mentioned the very large sum of $40 million. His Honour referred to the maximum penalty of life imprisonment.
The sentencing judge accepted that the respondent had expressed remorse, accepted responsibility for his actions and facilitated the course of justice. The respondent was "genuinely contrite" (SJ [83]).
In relation to specific deterrence, his Honour said (SJ [85]):
"The offender was a person of good character prior to February 2019, that is up until the age of 36. He became involved in the offence through his legitimate business activities. He did not set out to commit an offence but stood by and assisted the co-offenders in their intended criminal conduct. Whilst on bail for the offence he has continued to lead a law-abiding life and has a supportive partner. He has managed to abstain from drugs for a lengthy period and he is unlikely in my view to return to using drugs and is thereby unlikely to reoffend. His liberty was seriously curtailed by the imposition of an overnight curfew and daily reporting for about 18 months. He has also lost his security clearance, which has put the continuation of his business in jeopardy." (My emphasis.)
His Honour referred to the "fundamental consideration" of general deterrence in serious drug offences.
Having reviewed the respondent's subjective circumstances, his Honour found (at SJ [90]):
"I am satisfied that the offending conduct is completely out of character for the offender and that he became involved by reason of the fact that the criminal activity of others took place in his business premises. It is significant that the offender co-operated with the police to provide his electronic devices and the passwords to them. I am satisfied that he did so because he was not involved in the criminal syndicate at any significant level, and he had nothing to hide by doing so. I am satisfied that his mental conditions impacted his judgement and undermined his ability to extricate himself from the situation. I am satisfied that he was vulnerable by reason of his mental condition and was taken advantage of by the co-offenders."
[10]
The Conditions of Bail
Given their centrality to the resolution of the appeal it is well to set out the conditions of bail which I will summarise as below. From 1 April 2021 to 10 October 2022, a period of a little over eighteen months the conditions of the respondent's bail were:
1. reporting to police once each day Monday to Sunday between 8am and 8pm;
2. surrender of passport and prohibition on applying for another;
3. geographical restriction preventing the respondent approaching any point of international departure;
4. a residence condition requiring him to reside not at his own home at Luddenham where he was living alone, but with his mother at Mount Pritchard;
5. a curfew condition between the hours of 6pm and 6am, "except for the purpose of attending work or children's activities";
6. non-contact with co-accused;
7. requirement to be of good behaviour;
8. restriction of access to one mobile phone only and no encrypted applications; and
9. one acceptable person to provide security for the payment of $1,000,000 which he or she agrees to forfeit if the applicant fails to appear before Court in accordance with the bail acknowledgment.
The purpose of the residential condition was to require the respondent to reside at his mother's home so that his compliance with the curfew was monitored. A 12-hour curfew is relatively long but it was subject to flexible exceptions in respect of work and family activities.
The conditions of bail were varied in the District Court on 11 October 2022 so that the reporting requirement was reduced to 5 days per week; the respondent was able to return to his own home at Luddenham; the hours of curfew were reduced to nine hours between 9pm and 6am subject to the same flexible exceptions; and the amount of the surety was reduced to $900,000. These conditions continued until sentencing. I emphasise that the sentencing judge distinguished between the first and second suite of conditions for the purpose of backdating the commencement of the sentence.
[11]
The Director's Submissions
Ms Callan SC who appeared with Mr Tran, for the Director made it clear, at the outset, that the Director did not complain about the length and structure of the sentence imposed on the respondent. Rather, the complaint was "confined" to the backdating of the sentence for six months with the effect that the respondent "will not have served any time in full time custody" other than the period of two days following his arrest (T3.30, 12/06/24). Learned Senior Counsel also accepted that s 16A(1) Crimes Act did not mandate a "presumption" that a custodial sentence is required for drug trafficking offences contrary to the Criminal Code (T4.5-10; 12/06/24); cf Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [101]-[106] which concerned State drug supply offences. But Senior Counsel submitted that having regard to the facts, circumstances, objective seriousness and all other relevant considerations involved in sentencing the respondent, "The ultimate disposition was manifestly inadequate" because the backdating of the commencement of the sentence deprived its custodial component of any real effect (T4.10, 12/06/24).
Ms Callan accepted that a sentencing judge enjoys a wide discretion to backdate a sentence by dint of s 16E Crimes Act picking up s 47(2) of the State Act. However, focusing on Ground 1, impugning the sentencing judge's reference to the "[respondent's] pre-sentence custody", she pointed out that release to bail is not "custody". Reference was made to s 7 Bail Act 2013 (NSW) which provides that a person in custody who has been granted bail "is entitled to be at liberty for an offence [and] is entitled … to be released from custody" (my emphasis): Hunt v R [2021] NSWCCA 192 at [25], Wright J (McCallum JA and Rothman J agreeing). Reading the sentencing judgment as a whole, Ms Callan accepted that his Honour's reference to "pre-sentence custody" may be a mere slip and "pre-sentence quasi-custody" was intended.
Turning to Ground 2 in the alternative, Ms Callan submitted, by reference to R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253 at [87]-[88]; and [95]- [98], Price J (Hamill and Ierace JJ agreeing), that the test is whether the conditions of bail "are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as "quasi-custody"" (Crown Written Submissions, ("CWS") [36]). Whether this test is satisfied is a question of fact for determination by the sentencing judge which may only be challenged on appeal on House v The King (1936) 55 CLR 499; [1936] HCA 40 grounds. Learned Senior Counsel accepted that in order to establish error on the ground the sentencing judge mistook the facts, it was necessary for her to persuade this Court that the finding of quasi-custody made by the sentencing judge was not open (T10.25-35): R v O'Donoghue (1988) 34 A Crim R 397 at 401; AB v R [2014] NSWCCA 339 at [52]-[59]; Clarke v R [2015] NSWCCA 232; 254 A Crim R 150 and Hordern v R [2019] NSWCCA 138; 278 A Crim R 353, contra. Ms Callan argued that this Court would be so satisfied.
[12]
The Respondent's Submissions
Mr G James AM KC, who appeared for the respondent with Mr E James, submitted "that there is no principle restricting the power to backdate [a sentence] as dependent solely on pre-sentence custody or quasi-custody or the necessity to find that such custody is subject to some specific degree of rigour in the terms on which it was permitted. It is submitted that the power to backdate could be enlivened by any or all of the matters that might be taken into account on sentencing" (Respondent's Written Submissions, ("RWS") [8]).
Mr James submitted that the relevant State laws picked up by s 16E Crimes Act include ss 24(a) and s 47(3) State Act providing that a sentencing court must take into account any pre-sentence time spent in custody (usually) by backdating. He argued that, in contradistinction to s 47(3), s 47(2) confers a general power to fix an earlier commencement. Learned Senior Counsel submitted that all matters relevant to the purposes of sentencing may, in an appropriate case, become relevant to the fixing of a commencement date. Only custody must be considered. Mr James submitted that it was not necessary for the sentencing judge to impose any period of actual custody. It would have been open to him to have commenced the recognisance release order from the commencement of the sentence without an actual period of custody. Effectively, a suspended sentence was available (R v Bredal [2024] NSWCCA 75 per Dhanji J (Harrison CJ at CL and Button J agreeing)), even if exceptional circumstances may be required for some offences: s 20(b)(i) Crimes Act.
Mr James submitted error had not been established, the combination of factors including delay, stringent bail conditions and the progress that the respondent had obviously made toward rehabilitation, including overcoming his Substance Use Disorder to the extent that it was in sustained remission, justified the degree of leniency shown by the sentencing judge and the sentence imposed was not manifestly inadequate. Were the Court of a different view, Senior Counsel argued that the residual discretion was called into play and the court should decline to re-sentence the respondent.
[13]
Consideration
As Ms Callan acknowledged, in common with all judgments, a sentencing judge's reasons must be read fairly and as a whole without an eye finely attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6. Taking this approach, I would reject Ground 1. As already indicated, I would regard a reference to pre-sentence custody as a slip intending to refer to pre-sentence quasi-custody. Had the sentencing judge fallen into the asserted error, logically, he would have backdated the commencement of the sentence for the full eighteen months during which he regarded the conditions of bail as particularly onerous, as ss 24 and 47(3) of the State Act picked up by s 16E Crimes Act provide that pre-sentence custody must be taken into account and this is usually (almost invariably) done by backdating.
Before turning to Ground 2, it is necessary to say something about the main thrust of Mr James' argument. To re-capitulate, he submitted that s 47(2)(a) State Act conferred a wide discretion for backdating the commencement of a sentence not limited to considerations of custody or quasi-custody. The combination of delay, strict bail conditions over a long period and excellent progress towards rehabilitation more than justified the beneficial exercise of that power. My difficulty with accepting this argument in this case is that although the sentencing judge took all of those factors and more into account, his Honour did not state that he backdated the commencement of the sentence for this combination of factors. He said he would "back date the sentence by 6 months to take account the offender's pre-sentence [quasi-]custody" (SJ [102]). While he regarded delay in the circumstances as mitigatory, he focused on "the lengthy delay between the offending conduct and the arrest of the offender" (SJ [101]). He did not refer separately to the long delay of three years between the respondent's arrest and the imposition of his sentence. His Honour also took into account: what he regarded as the serious curtailment of the respondent's liberty by the stricter suite of bail conditions as one of the reasons for reducing the need for specific deterrence; his mental condition reduced his moral culpability; and his good character and demonstrated progress toward rehabilitation over a period of five years which were taken into account as factors reducing the risk of reoffending.
[14]
Ground 2 - Discussion
Before proceeding with the determination of Ground 2, it is appropriate to remind myself that Crown appeals are subject to certain principles not applicable to sentence appeals by offenders. The circumstances of this case do not warrant any detailed exposition of those principles, but it is convenient to mention some aspects of them.
As the High Court of Australia re-affirmed in Green v The Queen; Quinn v the Queen (2011) 244 CLR 462; [2011] HCA 49 at [1] the primary purpose of a Crown appeal is to lay down principles for the guidance of courts charged with the duty of sentencing offenders (French CJ, Brennan and Kiefel JJ, citing Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 at 310 (per Barwick CJ). It is important to understand as the plurality in Green went on to explain (at 36), "that is a limiting purpose. It does not extend to the general correction of errors made by sentencing Judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the [residual] discretion": CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9 at [55]. The point of distinction from offender appeals is that every offender is entitled to be sentenced according to law and therefore every demonstrated House v The King error enlivens a duty to exercise the discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
Given the "limiting purpose", the Crown carries the burden of persuasion at two levels before any question of re-sentencing will arise. The first level is the identification of error in the sentencing judge's discretion in accordance with the principles established in House v The King. At the second level, the Crown must exclude any reason for the Court to exercise the residual discretion not to interfere with the sentence passed at first instance before a duty to re-exercise the sentencing discretion arises: CMB at [54]. I will deal with the question of whether error has been established and then turn to the consideration of the residual discretion.
[15]
Ground 2 - Decision
For the reasons that follow, I have concluded that it was not open to the sentencing judge to conclude that even the stricter conditions of bail between the 31 March 2021 and 11 October 2022 amounted to quasi-custody justifying backdating the commencement of the sentence imposed by six months. In coming to this conclusion, I fully appreciate, as the Crown submissions acknowledged, that the question is one of fact in which questions of degree in all the circumstances necessarily arise. For this reason, it is not possible to express a bright line legal test applicable in every case. But this does not mean that the question is entirely at large or that the wide discretion the law reposes in a sentencing judge is entirely unbounded, and therefore unreviewable by the Court of Criminal Appeal.
I am of the view that the test as formulated by Price J in Quinlin (see [34] above) is as specific as the nature of the sentencing task and the wide discretion applicable to it will permit. To repeat, the question is whether the conditions of bail "are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as 'quasi-custody'": see also Frlanov v R [2018] NSWCCA 267 at [24], RA Hulme J (Macfarlan JA and Rothman J agreeing); and R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at [18], Grove J (Simpson and Shaw JJ agreeing).
Price J pointed out in Quinlin (at [89]) that two questions arise: first whether the bail conditions in fact amount to quasi-custody; and secondly, whether and to what extent an allowance should be made by backdating the sentence. As I have already indicated, his Honour said these are discretionary decisions reviewable only on a House v The King basis (Quinlin at [89]). As Garling J pointed out in La v R [2021] NSWCCA 136 (at [56]-[58]) (Basten JA and Price J agreeing), all grants of conditional bail pursuant to s 20 Bail Act will involve, or are highly likely to involve, restrictions on the person's liberty. His Honour observed that a grant of conditional bail involving some restriction on a person's liberty does not thereby, without more, constitute quasi-custody of a kind which makes it relevant to the imposition of a sentence. I think it useful to set out in full the relevant passage from his Honour's judgment (at [56]-[59]):
"All grants of conditional bail pursuant to s 20 of the Bail Act 2013 involve, or are highly likely to involve, some restriction. It may be noted that s 20A(2) of the Bail Act requires that any condition imposed on a grant of bail relates to the bail concerns which have been found to exist; that the condition is reasonably proportionate to the offence and the bail concern raised and that the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed.
It will also be relevant when considering the issue of quasi-custody, to identify with some precision the length of time over which a person has been on bail, and whether the conditions during that period had changed in any way.
The mere fact that a grant of conditional bail involves some restriction on a person's liberty does not thereby, without more, constitute quasi-custody of a kind which makes it relevant to the imposition of a sentence.
Before a grant of conditional bail, and compliance by an offender with that grant can be relevant to sentence, the offender upon whom the onus falls on the balance of probabilities, must establish that such were the restrictions imposed upon the offender by reason of the conditions of bail, that the Court ought conclude that the effect of the conditional bail approached the effect of being held in custody - that is what gives rise to the description "quasi-custody".
Other references to authority could be readily multiplied but the foregoing adequately captures the applicable principles.
[16]
The Residual Discretion
Having found error, it is necessary for me to consider whether the Crown appeal should be dismissed in the exercise of the residual discretion before turning, if not, to re-sentence the respondent: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at 146; Green v The Queen; Quinn v the Queen at [1], [24] and [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]; and Reeves v The Queen [2013] HCA 57; 8 ALJR 215 at [60]-[61]. It is for the Crown to negate the exercise of the residual discretion not to interfere: CMB v Attorney General for NSW at [54].
As this is a Commonwealth Crown appeal, s 68A Crimes (Appeal and Review) Act 2001 (NSW) does not apply; it is not picked up as surrogate federal law because there is no relevant "gap" in the applicable federal statute law, the Crimes Act, for s 80 Judiciary Act 1903 (Cth) to operate to "fill": Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 at [27]. Section 16A Crimes Act is to be applied by all courts exercising federal sentencing jurisdiction whether at first instance or on appeal: Bui v DPP at [20]. Having said this, s 16A Crimes Act brings about a similar legal effect to the express terms of s 68A. The "principle" of double jeopardy is not accommodated by provisions of s 16A: Bui v DPP at [29]. And by dint of s 16A(1), there is no occasion to reduce a sentence that the appellate court would otherwise consider appropriate on account of presumed mental distress or anxiety engendered by the prospect of re-sentencing by an appellate court following a Crown appeal. In Commonwealth sentencing matters s 16A(2)(m) accommodates "a state of distress or anxiety" on resentencing as part of the offender's mental condition referred to in s 16A(2)(m): Bui v DPP at [21]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; provided there is evidence of the actual mental condition of the offender capable of engaging the provision, rather than a presumption of distress or anxiety: De La Rosa at [279]-[280] per Simpson J; Bui v DPP at [22]-[24]. The requirement that there must be evidence of actual anxiety or distress arises from the opening words of s 16A(2), "the court must take into account such of the following matters as are relevant and known to the court" (my emphasis).
It is relevant at this juncture to record that on the hearing of the appeal, Mr James read two affidavits on the "usual basis" which I understood to extend to the question of application of the residual discretion. The first affidavit is of Kathy Archer affirmed on 5 June 2024. Ms Archer is an accredited mental health social worker, who has been counselling the respondent since 2018 to treat his mental health condition. Her evidence is that prior to sentencing at first instance, she observed the respondent was "experiencing significant stress and anxiety" due in part to the delay in the matter coming on for sentence. She also gave evidence that since the filing of the Crown appeal, "[the respondent's] mental health has reached breaking point in our sessions". He "has presented with a profound sense of hopelessness". In her opinion he is not suicidal. But she has expressed serious concerns regarding the respondent's mental health should he be required to serve a custodial sentence.
[17]
Orders
For these reasons I would order that in the exercise of the Court's residual discretion the Crown appeal is dismissed.
BUTTON J: I agree with the proposed order and judgment of Campbell J, and with the additional reasons of Ward P.
[18]
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Decision last updated: 25 July 2024
While the offending occurred over a little over two weeks in February and March 2019 the respondent was not arrested until 30 March 2021. He was then taken into custody and granted conditional bail on 31 March 2021. He remained on bail until sentenced. The effect of the sentencing judge backdating the sentence passed to 22 September 2023 was that other than for those two days following his arrest, the respondent did not actually serve any part of the custodial period of his term of imprisonment, but was released immediately to his recognisance. This is the Commonwealth Director's sole complaint about the sentence passed as expressed in the grounds of appeal (AB 11):
"1. The learned sentencing judge erred in finding the Respondent's bail conditions amounted to "pre-sentence custody" and backdating the sentence accordingly. Consequently, the sentence backdated by 6 months was manifestly inadequate.
2. Alternatively, the learned sentencing judge erred in finding that the Respondent's bail conditions amounted to quasi-custody, such that the sentence could be back dated. Consequently, the sentence backdated by 6 months was manifestly inadequate."
Four attempts were made to recover the cocaine from the ingots between 27 February and 4 March 2019 while the consignment was stored at the respondent's premises. The first attempt was made on the day of delivery when Dumbrell, Theobald, Keen and Grncarski were present. Dumbrell apparently knew where to look, being the bottom two layers of pallets 7 to 16, but they could not locate the hollow ingots containing the cocaine.
The respondent assisted with an attempt to locate the cocaine between 4:51 p.m. and about 5:04 p.m. on 28 February 2019. Some four of the co-offenders were also involved. A third attempt was undertaken on 2 March 2019 between 7:45 a.m. and 7:58 a.m. All of the co-offenders except Keen were present. Attempts were made to cut the ingots open, but the hollow ingots containing the cocaine were not located. Lawfully recorded conversations among the co-offenders present were to the effect that none of the ingots had the appearance they had been told to expect of those containing the cocaine.
On 4 March 2019 the respondent and the co-offenders except Grncarski were present at the premises between 4:26 p.m. and 4:41 p.m. sorting ingots from the consignment. On 13 March 2019, the respondent, Theobald and Keen were within the premises again sorting the ingots. Lawfully installed optical surveillance devices recorded the respondent examining ingots with the assistance of his mobile phone torch. He was engaged in this exercise for about 20 minutes. At a meeting of the co-offenders later that day when the respondent was present, Theobald said things in his presence which made it clear they were looking for "$40 million worth of drugs and the offender was actively involved in helping to locate the particular ingots" (SJ [77]).
The efforts of the co-offenders seemed to have been abandoned by 13 March 2019 and Theobald gave the respondent permission to dispose of the ingots by sale and retain the proceeds. This was eventually achieved on 7 May 2019. The respondent sold them for $12,000. He also received the rent referred to at [8] above (SJ [68]).
The sentencing judge accepted that initially the respondent believed the ingots were being stored for a lawful purpose. It was only later that his suspicions were aroused. The respondent did not participate in any of the "off-site" meetings of the co-offenders. Even so, he continued to be actively involved. And, of course, he had a legitimate reason to be at the warehouse: it was his place of business.
It was accepted that the Crown could not prove the following matters beyond reasonable doubt, that:
1. the respondent was criminally involved with the co-offenders prior to 28 February 2019;
2. he had any connection to any of preparatory consignments brought in prior to the delivery of this consignment to his premises;
3. the respondent had actual knowledge that the ingots contained a border-controlled drug; and
4. the conduct of the respondent in disposing of the ingots after 13 March 2019 was part of the offending conduct.
His Honour accepted that the respondent had demonstrated from his conduct since the offending good prospects of rehabilitation and his pro-social life since then "will lead him away from committing further offences" (SJ [91]). His Honour was satisfied that a prison sentence would have a deleterious impact upon the respondent's daughter with whom he now has regular contact and his sister's daughter towards whom he has adopted a caring role.
It is unnecessary for me to engage in the considerations of parity that his Honour referred to in relation to each of the co-offenders (SJ [93]-[99]) as his Honour's approach in that regard is not in issue in this appeal. The matters most relevant to the appeal were "delay" and "pre-sentence custody". I will set out his Honour's conclusions about those matters fully (SJ [100]-[102]):
"Delay
[100] The drug offence was committed in the period February to March 2019, but the offender was not arrested until 30 March 2021. Delay of itself is not a mitigating factor. The offender did not know he was under suspicion or investigation and was thereby not exposed to "uncertain suspense". This is not a case where, as a result of the delay, the offender had a legitimate expectation that he would not be charged, but I accept that he did not cause the delay. The COVID-19 pandemic arose during the relevant period, but otherwise the delay has not been satisfactorily explained.
[101] The offender did not commit another offence during the delay. It is appropriate to mitigate the sentence imposed to some extent by reference to the lengthy delay between the offending conduct and the arrest of the offender.
Pre-sentence custody
[102] The offender spent one night in custody before he was released on bail. In addition, he spent a bit over 18 months the subject of an overnight curfew and daily reporting to the police. I will back date the sentence to be imposed by 6 months to take into account the offender's pre-sentence custody."
Subject to the backdating issue referred to (at SJ [102]), his Honour concluded that no sentence other than imprisonment was appropriate. His Honour imposed the sentence referred to above (at [2]).
In Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Hayne J observed (at [130]) because a judge is bound to state his or her reasons for arriving at the decision reached, "the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result". This statement of high principle, in my judgment, precludes this Court from construing the sentencing judgment in the manner advanced by Mr James. I repeat, the sentencing judge clearly stated why he had decided to backdate the sentence. This does not mean, however, that the argument he advances is irrelevant. If Ground 2 is made good, those matters to which he refers may yet be relevant to re-sentencing or to the exercise of the residual discretion.
The factual outcomes in other considered decisions do not constitute binding authority nor do they establish categories of case in which an allowance for quasi-custody while on bail will or will not be allowed in future cases. At the same time, they may illustrate how the principles are applied, without necessarily establishing any useful pattern. The sentence in Quinlin was similar in effect to the present case. The offending was manslaughter by unlawful and dangerous act which the sentencing judge found to be at the low end of objective seriousness. The offender pleaded guilty in the Local Court but there was a delay of 21 months not attributable to the offender or his legal representatives before he was dealt with in the District Court. The conditions of bail included a twelve-hour curfew, prohibition on entering licensed premises, abstinence from alcohol, a geographical restriction on entering the township where the offending occurred and, daily reporting for the initial period of six months. The offender was aged 23 when he offended and 25 years of age when sentenced, and he had a history of schizophrenia and significant childhood social deprivation. He used his time on bail wisely to undertake a TAFE course and substance abuse rehabilitation. With an allowance for six months on remand and an additional six months (totalling twelve) for quasi-custody on bail, the sentencing judge backdated the commencement of the sentence so that the non-parole period of twelve months expired on the day sentence was passed. Price J (at [98]) found the bail conditions would not normally have justified a finding of quasi-custody. However, the mental health issues, the long delay, which increased the time on conditional bail and the relative stringency of the bail conditions together were sufficient to justify the additional period of backdating and the Court found no error.
In Hoskins v R [2016] NSWCCA 157 ([33]-[38], [40]-[41]) the sentence had been discounted by 60 days on account of onerous bail conditions. The conditions included a residential condition, daily reporting, non-contact with co-accused and prosecution witnesses, a conduct condition that the offender pursue employment, and a twelve-hour curfew with an enforcement condition. While the court did not interfere with the discount, it expressed the view that there is a real factual issue as to whether the conditions "are so restrictive as to amount to quasi-custody" (at [38])
In R v Anderson [2012] NSWCCA 175, Davies J (with whom I agreed at [44]) held that bail requiring residence in a country town with a relative, a geographical restriction that the person remain within the town limits except when attending court or conferences pre-arranged by her lawyers, a twelve hour curfew and daily reporting supported a finding of quasi-custody. Dissenting, Allsop P (at [2]) regarded the conditional bail in all of the circumstances as "hardly rigorous".
In R v Webb (at [45] above), while the principle was acknowledged, a home detention condition except for reporting, attending court and medical appointments was held not to mandate any mitigation of sentence (at [18]). After the first three weeks, the offender was permitted to leave home to attend work in the company of his father, and he was able to receive visitors including members of his family. He had been on bail for approximately 20 months when sentenced.
In R v Reeves [2014] NSWCCA 154; 243 A Crim R 559, the offender, who was on parole for other offending, was granted bail requiring him to reside at a Community Offender Support Program ("COSP") centre with very strict conditions limiting all aspects of daily life including residence, movements, financial management, a requirement to undertake community work and chores at the COSP and restrictions on his freedom to associate. The Court of Criminal Appeal found the conditions "may be properly characterised as quasi-custody" (Bathurst CJ, Hall and R A Hulme JJ at [65]).
In Hello v R [2010] NSWCCA 311, the conditions of bail included curfew of 10 hours duration and reporting to police on four days of each week. Latham J (Rothman and Price JJ agreeing) was not persuaded that the conditions of bail were relevantly onerous (at [49]-[50]).
Extended home detention conditions or participation in a full-time residential rehabilitation program subject to compliance with strict conditions for an extended period of time may be taken to constitute quasi-custody, but not always. In La v R, Garling J said (at [60]):
"If a person is free to come and go from the premises to which they are bailed, then there will be little or no restriction of any relevant kind. The mere fact that a person had to reside at a particular premises does not of itself, constitute a restriction sufficient to amount to quasi-custody, nor does the fact that a person is required by a condition of bail to undergo medical treatment, to seek psychiatric or psychological help or to participate in such rehabilitation program as may be appropriate for their condition. These are conditions imposed, as the Bail Act requires, to address the underlying offence or the bail concerns raised by the Crown when bail is applied for. They may be relevant considerations for a finding of quasi-custody, but in the absence of anything more would not ordinarily constitute quasi-custody."
Notwithstanding his residence in a rehabilitation facility, the offender's freedom "to come and go from the premises" included the freedom to work full time in the latter stages of the program. During this latter period, he met, and formed a new relationship, with his life-partner when sentenced to whom he had been introduced by a mutual friend, suggesting significant freedom of social interaction and association. (La v R at [61]).
Naturally, this Court would be slow to interfere in a borderline case given the high bar constituted by the requirement that the Crown demonstrate the conclusion that the bail conditions amounted to quasi-custody was not open. But I am satisfied that it was not open to the learned sentencing judge to conclude that the conditions of the respondent's bail amounted to quasi-custody. I reiterate that by necessary implication, his Honour did not regard the bail conditions after 11 October 2022, as justifying such a finding. But there was little to distinguish between the conditions of bail before and after that date, so far as they impinge upon the respondent's general right to be at liberty, which is the appropriate focus. The large surety, which was appropriate to the seriousness of the charge, the maximum penalty and the risk of flight, did not of itself impede the respondent's liberty. In any event it was provided by another. The curfew, reporting condition and residence condition were the most relevant conditions for this purpose. In this regard it should not be overlooked that even the twelve-hour curfew condition when applicable was subject to a very flexible exception. The respondent was entitled to be absent from the residence during the hours of curfew to attend to family commitments involving his children and for work purposes. The requirement that he reside with his mother and report to police daily do not strike me as unduly onerous, either by themselves or as part of the broader suite of bail conditions.
It should also be pointed out that in the case of serious offences, like this charge, the conditions imposed upon the respondent were of a type very commonly imposed by the Supreme Court. Indeed, it could be said that curfew, frequent reporting and residence conditions are almost "standard conditions of bail" when an offender is charged with a serious offence, the Crown case is strong and full-time custody is a likely outcome on conviction. These observations would have applied to this case when bail was first granted. The period of eighteen months during which the respondent was subject to these conditions of itself did not represent an unreasonable or unduly long period to be on bail; I say nothing of the three years it took for the matter to come on for sentence. Were the conditions of bail imposed on the respondent adjudged as quasi-custody, most people charged with strictly indictable offences would be entitled to make the same claim. Given the purpose of conditional bail is to ameliorate bail concerns in compliance with ss 20 and 20A Bail Act, such a state of affairs cannot be justified.
I agree with Garling J that a grant of conditional bail involving some restriction on the person's liberty "does not thereby without more constitute quasi-custody". In my judgment, the circumstances of the present case do not demonstrate the requisite additional factor. I would uphold Ground 2.
The second affidavit is of Emily McNeill affirmed on 5 June 2024. Ms McNeill has been the respondent's life partner since September 2020, about six months before his arrest. Since the respondent's arrest in March 2021, she has noticed a marked change in him which became worse because of the delay in completion of the legal proceedings. Ms McNeill states she has noticed "a drastic decline in [the respondent's] mental health and ability to move on with life" since the filing of the Crown appeal. The evidence of these witnesses is unchallenged and uncontradicted.
Although I have been persuaded that Ground 2 has been made good and that the learned sentencing judge fell into error in that regard, I am not persuaded that the Court should decline to exercise the residual discretion not to interfere. In expressing this conclusion, I acknowledge that the Director brought and prosecuted the appeal with all due celerity. There certainly has been no delay since sentence was passed on the respondent. On the other hand, while not a focus of the proceedings at first instance, there had been significant unexplained delay both before the charge was laid in March 2021 in respect of offending which had been detected by federal law enforcement agencies in February 2019, and after his arrest during the three years it took to bring the prosecution to an end. The total period is one of a little over five years which is unexplained and in my judgment prima facie unreasonable. The sentencing judge accepted that delay occurred through no fault of the respondent himself and there is no evidence suggesting delaying tactics on the part of those representing him. The Court is entitled to know that large, prohibited drug prosecutions are complicated. As here, they often involve static and electronic surveillance including lawful telephone interceptions. It is not unusual for there to be multiple co-accused as there were here. All of this adds to the complexity of the prosecution and the time necessary for the matter to be brought to finality. I appreciate that the sentencing judge discounted the significance of the time between offending and arrest on the ground that this was not a case where the respondent had been lulled into a false belief that he would not be charged. I infer that he was unaware that his involvement in the offending had been detected. But it remains the case that the delay both before and after arrest could only be explained by federal authorities and it has not.
In this context, I accept the psychiatric evidence below, supplemented as it is by the affidavits read at the hearing of the appeal, that the delay has had a deleterious effect upon the respondent's mental condition due to the uncertainty about his fate over an unreasonably long period of time. I also accept that the respondent's mental health condition has been exacerbated by the added layer of uncertainty engendered by the Crown appeal, notwithstanding the efficiency with which it has been brought and prosecuted. Making these observations I appreciate that the evidence before the sentencing judge established that the onset of the respondent's mental condition pre-dated his offending and was initiated by the breakdown of his marriage and his substance abuse. While the respondent's Substance Abuse Disorder is in sustained remission, I accept his adjustment disorder with mixed anxiety and depression has been prolonged and aggravated by the delay.
I am not of the view that the conduct of the proceedings on sentence by the Crown contributed to the sentencing judge's error. Counsel at first instance suggested that the conditions of bail until 11 October 2022 were "considerably onerous" and that delay was a factor. However, she did clearly state the Crown's position that "this is a case that requires full-time imprisonment with a non-parole period" involving a head sentence of three years or more (AB 36.30). That the Crown did not press its detention application, s 22B Bail Act "notwithstanding", was not to be taken as "an indication … of disposition".
However, nor can it be said the conduct of the proceedings on sentence on behalf of the respondent led his Honour into error. As I have made clear above, a sentence of three years or less with immediate release on a RRO was sought on the basis of delay, the impressive progress of the respondent's rehabilitation, and the long period on restrictive bail. Senior Counsel for the respondent, far from urging a finding of quasi-custody upon the sentencing judge, submitted, "we cannot say that they are the most rigorous bail conditions" (AB 23.25). Instead, as in this Court, "restrictive bail conditions" over three years, delay and, as I have said, the impressive progress the respondent had made toward rehabilitation were relied upon in combination. The question was posed, "What would be achieved now to the community's benefit of requiring him to spend a period of time in custody in punishment…?" (AB 28.27). With every respect for the sentencing judge's careful judgment, nowhere did the respondent argue that a minimum term should be backdated under s 16E Crimes Act on the basis of quasi-custody constituted by onerous conditions of bail.
As the result in Quinlin demonstrates (at [98]-[99]), it would have been open to the learned sentencing judge to impose the very same sentence, structured as it was, including backdating the sentence so the RRO came into effect immediately upon sentence being passed having regard to the various factors referred to without a finding of quasi-custody. This was the very matter urged upon this Court by Mr James. Such an approach is permissible by force of s 47(2) State Act operating as surrogate federal law under s 16E Crimes Act, rather than focussing upon the mandatory terms of s 47(3) State Act.
The respondent has made very impressive and substantial progress towards rehabilitation. Prior to the offending, he was a person of good character and a productive businessman employing other members of the community. His substance abuse issue is in remission and the risk of him offending again in this way is so low as to be negligible. While adequate punishment serves its own purpose, I am not of the view that the community's interest in retribution requires, at this stage, five years after the event, that this offender serve six months in custody for this offence.
Finally, when one considers the adequacy of the punishment imposed by the sentencing judge one should not overlook the duration of the RRO of five years subject to supervision and other conditions. This is the maximum period for an RRO permissible, and it extends beyond the period of the sentence imposed by two years: s 20(1)(a)(i) Crimes Act. And as Ms Callan acknowledged, while those who engage in serious drug offending may usually receive a sentence including a period of full-time custody, there is no "presumption" in that regard. Non-custodial options are not outside the range of appropriate sentences in a case like the present.