R v Byrne

File Number(s): 2023/00333911

Publication restriction: Nil.

Judgment

1. HIS HONOUR: Andrew Craig Byrne stands for sentence as a consequence of pleading guilty to a number of charges. He was originally charged with 12 offences. He stands for sentence for five of those offences, the offences known as Sequence 6, Sequence 9, Sequence 10, Sequence 11 and Sequence 12. He asks me to take into account on a Form 1 in respect of Sequence 9, four further charges known as Sequence 2, Sequence 3, Sequence 7 and Sequence 8. The offences known as Sequence 1, Sequence 4 and Sequence 5 either have been withdrawn or are to be withdrawn.

Sequences 9 and 10

2. There are two substantive charges. They are known as Sequence 9 and Sequence 10. Sequence 9 is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offender is charged and has pleaded guilty to supplying a prohibited drug in a commercial quantity. The drug was 2068.54 grams of butanediol. The maximum penalty for that offence is imprisonment for 20 years. Parliament has prescribed a standard non-parole period of ten years which I would have to consider imposing if the offender had pleaded not guilty, was found guilty after trial and the offence was in the mid-range of objective seriousness.

3. The other substantive charge to which the offender has pleaded guilty is known as Sequence 10 and is dealing with the property reasonably suspected of being the proceeds of crime. The amount of money in question is $600,000. That is an offence contrary to s 193C(1) of the Crimes Act 1900. The maximum penalty is imprisonment for five years. There is no standard non-parole period. I shall deal with the offences known as Sequence 6, Sequence 11 and Sequence 12 later.

4. The relevant offending occurred on 20 October 2023. At that time the offender was 43 years old. He is currently 45 years old. The offences committed by the offender include a co-offender, Ms Chloe Shaxson, who at the relevant time was 25 years old.

5. The offender had hired a storage unit at Kennards Self Storage at Petersham. The unit which he hired was known as D009. To obtain entry he was provided with a six digit code which he shared with the co-offender. On 18 October 2023, police executed a search warrant at that unit. During the execution of the search warrant, police located 6.6 grams of methylenedioxy methylamphetamine, commonly known as MDMA or ecstasy that being Sequence 12 on the Form 1, and six 5 milligram tablets of the drug known as Valium, that is chemically known as diazepam.

6. On 20 October 2023, the offender was seen on CCTV approaching the entry gate to the Kennards facility at Petersham. He was driving a white van. The co-offender was with him. Between 4.49am and 7.19am on 20 October 2023, the offender and the known co-offender and an unknown associate can be seen unloading numerous bags and suitcases. The co-offender is observed grabbing a trolley while the offender removes a black backpack from inside the van and places it onto the loading dock. The co-offender is observed reaching into the side of the van and removing a blue Aldi freezer bag and placing it on the loading dock as well. The offender then took possession of the blue Aldi bag and placed it on the trolley with other personal items. The offender then collected the black backpack and returned it to the white van, while the co-offender pushed the trolley containing the blue Aldi freezer bag. The co-offender and another co-offender are seen on CCTV handling the blue Aldi freezer bag. The offender left the premises alone at 7.43am.

7. Police saw him again at 12.35pm entering the facility driving a white Mazda. At the time the offender was wearing a white t-shirt, cream coloured shorts and was wearing a large backpack. About 12.38pm, plainclothes police attached to the inner west proactive crime team entered the compound and arrested the offender on account of outstanding warrants. As the police approached the offender he had placed the black backpack on a white cupboard directly behind him.

Sequence 11 (s 166 Certificate)

8. Police conducted a search of the offender’s person and of the black backpack resting on the white cupboard that was behind him. During the search of the offender’s bag police located a smaller makeup bag. Police removed a white envelope from it with a number on it. The number was 41. Upon opening the envelope police found 42 Suboxone strips identified as 37 grams of buprenorphine. A further 0.62 grams of that drug was located, totalling 37.62 grams of buprenorphine. That is Sequence 11.

Sequence 6 (s 166 Certificate)

9. Police located a container with a brown powdered substance identified as 2.87 grams of heroin. Police also located a clear resealable bag containing 0.06 grams of heroin and a clear resealable bag containing 1.50 grams of heroin. The total of the heroin was 4.43 grams. That is the Sequence 6 offence.

Sequence 8 (Form 1 to Sequence 9)

10. Police located a resealable bag containing a white crystalline substance identified as 1.97 grams of methylamphetamine. Police also located a resealable bag with a pink rocklike substance containing 0.16 grams of methylamphetamine, a resealable bag containing 0.29 grams of methylamphetamine, and a small glass vial with a clear substance containing 0.75 grams of methylamphetamine. The total methylamphetamine found was 2.99 grams. That is known as Sequence 8 and is one of the matters on the Form 1 attached to Sequence 9, the principal offence.

Sequence 7 (Form 1 to Sequence 9)

11. Police also located 40 white tablets in a clear resealable bag containing 6.54 grams of Oxymetholone. That is the offence known as Sequence 7 which is again on the Form 1.

Sequence 2 (Form 1 to Sequence 9)

12. Police located in the makeup bag two packets of Valium containing 11 tablets, each of 5 milligrams. The total was 3.42 grams of the chemical Diazepam. That is the Sequence 2 offence which again is on the Form 1.

Sequence 3 (Form 1 to Sequence 9)

13. Police also located five large tablets in a resealable bag containing 2.79 grams of Xanax, a prescribed drug. That amounts to the crime known as Sequence 3, again a matter on the Form 1.

Sequence 9

14. Police also found a “Rose Hydasol” branded soap bottle which contained 82.27 grams of the drug known as 1-4 Butanediol.

15. Police also found on a trolley with the co-offender’s belongings a blue Aldi freezer bag that had been seen on the two days preceding this event. Upon opening the bag, police found a white plastic bag and inside that plastic bag were four bottles labelled “Plastic Special Glue”, but each bottle contained the drug Butanediol. The total of the drug was 1,985.81 grams of 1‑4 Butanediol. So, the total of that drug was 2,068.54 grams.

Sequence 10

16. On 28 December 2023, police commenced inquiries into the offender’s bank accounts and found that he was receiving large deposits and cash ATM deposits with false descriptors. The police ascertained that the offender had, in fact, nine bank accounts which showed several unexplained transfers. Between September 2020 and December 2023 an amount of not less than $600,000 was deposited in the offender’s accounts which were reasonably suspected of being from the proceeds of crime. That offence, of course, is the Sequence 10 offence.

17. The police lawfully obtained access to records of calls made from the offender after he had been placed in the custody of Corrective Services. On the day of his arrest, he contacted the co-offender and made admissions to his backpack having been searched by the police. The offender asked whether the blue Aldi freezer bag was found and he admitted to the contents being the drug 1-4 Butanediol rather than the drug GHB.

18. On the following day, in another call, the offender continued to discuss the bottles located in the blue Aldi freezer bag and discussed the police’s locating them. The offender pointed out to the co-offender that the drugs were not on him, but on the trolley that was found at the unit.

Consideration

Sequence 9

19. The commercial quantity of Butanediol is a kilogram, that is, 1,000 grams. The large commercial quantity is four kilograms, that is, 4,000 grams. The quantity that was found in the possession of the offender was double the commercial quantity but clearly half of the large commercial quantity.

20. I have competing submissions about the significance of the trade in this drug. According to the Illicit Drug Data Report bearing the dates 2020 to 2021 published by the Australian Criminal Intelligence Commission, the following is said about the drug known as Gamma-Hydroxybutyrate, generally known as GHB and substances related thereto. This is said:

“GHB is a naturally occurring substance found in the central nervous system [of the human body] and may also be synthetically produced.

GHB is commonly consumed as a water-soluble salt and appears as a colourless and odourless liquid solution usually sold in small bottles or vials.

Gamma-Butyrolactone (GBL) and 1,4 Butanediol...are analogues and precursors of GHB which, upon ingestion, metabolise into GHB in the body, producing identical effects...”

21. Each of the three drugs I have just described is an anaesthetic. The other main anaesthetic drug abused is Ketamine. These are naturally occurring central nervous system depressants. The same work indicates the price. The national median price at the time of the publication was $6.25 for either one or 1.5 millilitres of each of the three drugs. The national median price for one litre of each of the three drugs was $2,750. I, again, stress that those are figures for 2019 and 2020. One can see that if one bought a litre of 1,4 Butanediol and sold it in 1.5 millilitres one’s expenditure would be $2750 but one’s total gain from selling in 1.5 litre amounts would be $4167. A small profit was therefore being realised by buying in bulk and selling in small quantities.

22. Submissions about the significance of the drug are these. The Crown says this:

“The Drug Misuse and Trafficking Act 1985 does not contain a ‘harm‑based graduation of penalties’ as amongst different prohibited drugs. The fact that 1,4-Butanediol (and other related drugs such as GBH and GBL) might be suggested to be ‘lower-value’, is not, in and of itself, a relevant consideration to sentence. Such was confirmed in Petkos v R (2020) NSWCCA 55, where Adams v R (2008) 234 CLR 143 and DPP (Cth) v Maxwell [2013] VSCA 50 were considered. In Petkos, Hamill J said this:

26. One potential difficulty in the application of the “principle” referred to is similar to the issue raised by the High Court in terms of the relative harmfulness of drugs, namely “the difficulty of establishing a suitable factual foundation for such an approach”: Adams v The Queen at [10]. Another is that there are a vast number of substances set out in Schedule 1 to the Drug Misuse and Trafficking Act and many Judges will not be in a position to know, in the absence of evidence, which are “high reward” drugs and which are “low reward” drugs. In some cases, as submitted by Queen’s Counsel, it will be known. He cited an example of the notoriously large rewards that can be derived from trafficking in cocaine and heroin. Leaving those issues aside, I accept that there may be cases where it might be appropriate for sentencing courts in this state to take into account the analysis relating to drugs like GBL by the Victorian Court of Appeal in Maxwell.

27. However, at the heart of the decision in Maxwell was the following uncontroversial proposition:

“21 In addition to the weight of the drugs imported (or trafficked), the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. Other things being equal, an importation which is undertaken because it will bring — or is expected to bring — a large financial reward to the offender will be more serious than one where the expected reward is small or non-existent. The underlying proposition is that the greater the (anticipated) reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender’s moral culpability.”

28. The Court went on to cite Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64]:

“In general, ... the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed.” [Emphasis added by the Court in Maxwell.]”

23. On the other hand, the offender drew my attention, through his counsel, to statistics for the supply of GHB in a commercial quantity. 85 offenders had been charged with supplying a commercial quantity of GHB. Of the 85 offenders, 31 had been sentenced to an Intensive Corrections Order (‘ICO’) and 54 had been sentenced to imprisonment. The median non-parole period was two years. Where an ICO was imposed, almost a third of offenders received a two year ICO and almost a third of offenders received an ICO of more than two years which means there must have been more than one offence. The longest period that can be served by way of an ICO is three years. Certainly, the penalties imposed generally for more serious forms of drugs such as heroin, cocaine and methylamphetamine are much longer. The offender, of course, was not found actually supplying drugs, but the quantity of the drug involved indicates at least a deemed supply.

Sequence 10

24. The other principal offence known as Sequence 10, dealing with property reasonably suspected of being the proceeds of crime can involve millions of dollars. For most of the last two weeks I have been dealing with money laundering offences. The amount in question, whilst it looks large, is, in the grand scheme of things, not particularly large considering that millions of dollars can be involved. Furthermore, the extent of the offender’s criminal responsibility is restricted to dealing with monies where there are reasonable grounds to suspect that the money is the proceeds of crime. There are other more serious offences where clearly the offender is reckless as to whether the money is or is not the proceeds of crime, and there are also even more serious offences where the offender actually knows that the funds are the proceeds of crime and seeks to cover up that knowledge or the fact that the funds are the proceeds of crime.

Criminal History

25. The offender has a criminal history which very properly he sincerely regrets. At the age of 27, he committed larceny, for which he received a good behaviour bond for a period of 12 months. On 11 September 2009, he committed another series of offences. The first was driving whilst under the influence of alcohol or a drug for which a mere conviction was recorded. However, he was dealt with in this Court for supplying a commercial quantity of a prohibited drug, possessing a prohibited drug, and forging or altering a prescription which included a prohibited drug. For those offences, he was sentenced to imprisonment for six years commencing on 2 December 2008, with a non-parole period of three years and six months concluding on 1 June 2012. That sentence was imposed on 11 September 2009 whilst the offences occurred on 16 June 2007.

26. Whilst awaiting a sentencing hearing for those significant crimes, the offender was found guilty of possessing house breaking implements for which a mere conviction was recorded under s 10A. As a result of the first particularly long gaol sentence, the offender was admitted to parole on 1 June 2012. However, on 29 May 2013, in breach of his parole, he committed a large number of other drug offences. The first was possessing a prohibited drug. The second was goods in personal custody suspected of being stolen. The third was dealing with property suspected to be the proceeds of crime. The next was supplying a prohibited drug being greater than the indictable quantity. The next was taking part in the manufacture or the like of a prohibited drug in the indictable quantity. The final and most serious charge was supplying a prohibited drug in the commercial quantity, the same offence for which he stands for sentence today. The offender was sentenced to imprisonment for four years and six months, commencing on 1 March 2015 with a non-parole period of two years, ending on 28 February 2017. The head sentence expired on 31 August 2019.

27. On 17 January 2020, not long after the expiration of that sentence, the offender again committed drug offences. They were, supplying a prohibited drug in greater than the indictable, but less than the commercial quantity and, again, dealing with property the proceeds of crime. On that occasion the Local Court at Burwood sentenced the offender to an ICO for a period of 18 months, commencing on 31 July 2020 and concluding on 30 January 2022.

28. On 16 April 2021, the offender drove whilst his licence was suspended for which he was fined and disqualified from driving for six months.

29. On 11 June 2021, he again committed a number of drug offences. They were, possessing or attempting to possess a prescribed restricted substance, possessing one prohibited drug, possessing a second prohibited drug, driving whilst there was present in his blood an illicit drug, and another count of possessing a prohibited drug. For the offence known as Sequence 6, possessing a prohibited drug, he was given a Community Corrections Order for 16 months, commencing on 27 January 2022 and expiring on 26 May 2023.

30. However, he was called up for a breach of that order and was sentenced to imprisonment commencing on 31 October 2023, concluding on 30 January 2024. In fact, the offender was taken into custody for these offences on 20 October 2023. It would appear that the offence which led to the offender being called up for breach of that CCO was possessing a prohibited drug on 18 June 2022. At the same time, he had goods in custody suspected of being stolen, and also custody of a knife in a public place.

31. The offender’s criminal record certainly does not entitle him to any leniency. However, things have changed remarkably over the last 16 months. On 19 March 2024, the offender was given bail. He had been in custody since 20 October 2023 when he was arrested for the current offences. The terms of bail, leaving aside the usual standard conditions were these:

“The applicant may only travel away from the South Coast Correctional Centre from which the applicant is to be released on bail only in the company of Janine Lois Byrne [the offender’s mother].

The applicant is not to drink alcohol.

The applicant is not to take any illegal or prescription drugs, other than a drug prescribed for the applicant by a medical practitioner.

The applicant is to undertake a course of rehabilitation at the Restoration Centre, 41 Branders Lane, North Richmond NSW 2754. The applicant is not to leave that institution until the rehabilitation program is completed, other than for the purpose of prearranged conferences with lawyers or attending court. If the applicant is refused admission, leaves or is expelled from the rehabilitation centre at which the applicant is to reside, he is to travel directly to the nearest police station and surrender himself as being unable to comply with bail. The applicant is to obey any reasonable direction given to him by:

(a) the person in charge from time to time of the rehabilitation facility at which the applicant is to reside.

The applicant is to comply with any regime or medical treatment recommended by a medical practitioner, including taking medication as prescribed.

The applicant is not to use or be in possession of more than one mobile telephone service and SIM card, and is to provide the password or PIN code, service and IMEI numbers of that telephone to the officer in charge within 48 hours of taking or resuming possession of any such service.”

32. Somewhat superfluously, the offender was then required to reside at the Restoration Centre and nowhere else. He was also prohibited from applying for a passport or any other travel document. He was also prevented from going within 500 metres of any point of international departure from the Commonwealth of Australia. He was not to make contact with, or approach or seek in any way to communicate with any Crown witness, other than a serving police officer, by any means other than through a legal representative.

Rehabilitation and Risk of Reoffending

33. The offender went to the Restoration Centre at North Richmond on 19 March 2024, and completed a one year rehabilitation course on 20 March 2025, a period of one year and two days. There is much evidence before me from that rehabilitation course. The first is a letter from the CEO of the Restoration Centre. It bears date 7 July 2025. Since completing the course on 20 March 2025, and going through a graduation ceremony on 4 May 2025, the offender currently remains at the Restoration Centre. The CEO, Mr Weir, says this in his letter:

“Andrew successfully completed the program on March 20, 2025, marking a significant milestone in his journey toward personal transformation and reintegration into society.

The graduation ceremony held on 4 May 2025, was a moment of joy and celebration with family and friends, reflecting Andrew’s hard work and determination. His mother emotionally commented that she finally has her son back. Throughout his time in the program, Andrew made several commendable decisions, demonstrating his commitment to positive change from the very first day.

His consistent dedication, leadership qualities and willingness to support others in the program have not gone unnoticed. I intend to hopefully offer Andrew an internship soon to further develop his profile in the community, which will be in partnership with other organisations we are involved with. This opportunity will not only build on his achievements and also position him as a role model for others on similar journeys.

He is also a very active member of the local church at Castle Hill called ‘Elevation Church’ where he has taken initiative in attending once a week. We have seen him excel even further with this added accountability in his life as he continues to better himself and those around him. He has taken the reins in developing his leadership and interpersonal skills and strengthened his relationships with other participants and the broader community.

Community Outreach is a cornerstone of The Restoration Centre’s program, and Andrew has fully embraced these opportunities over the past months. His contributions include:

Regularly cooking and serving at community barbeques in Redfern, Waterloo, and Parramatta and significantly contributing to their success, with over 100 people attending weekly at Kettle Street Park, Redfern.

Actively participating in the spiritual and emotional support of fellow program participants, including leading chapel sessions and encouraging others to stay committed to their recovery and personal growth.

Andrew’s leadership abilities have been particularly evident in his role as part of the program. He currently leads chapel every Monday and assists with various outings, especially with taking ownership of driving the bus on most occasions.

When Andrew first joined our program, he described himself as a ‘lost, depressed man’, struggling with substance abuse and other challenges. From day one, however, he made the decision to give up drugs, fully embracing the program and the life-changing opportunities it offers. Andrew has recently enrolled in a computer programming course, which he has almost completed - another testament to his dedication to growth and a new future. Today, I can confidently say that Andrew is a transformed individual - restored to God, his family and the community. I believe he received a miracle.

In conclusion Andrew’s journey is a testament to his resilience and commitment to change. He has become a success story not only for himself but also for the broader community and the Restoration Centre. I believe he has the potential to positively influence many people and help them make better choices in life.”

34. There is a letter in very similar terms testifying to the same matter, from Mr Mitch Sanderson, the General Manger of the Restoration Centre. There is also a letter from Mr Beau Smith, bearing date 14 July 2025. Mr Smith is the Program Manager at the facility, and he speaks highly of the offender’s input at the Restoration Centre for the benefit of other participants in its rehabilitation program.

35. The inference I drew from reading the material is that there was some connection between the Restoration Centre and the Elevation Church, to which mention was made in the letter that I read. There is in evidence also a letter from Mr Ben Moir, an Associate Pastor at that church, again testifying to much that had been testified to by Mr Weir.

36. To use, what might be thought to be religious language, the offender has seen the light. To use language often used in criminal law, the offender has seen the errors of his ways and has now turned a corner. He is to be encouraged to persevere with his resolve to give up drugs, to lead a law abiding life and to achieve something for himself, that will make him proud of who he is, and make his mother and father proud of him.

37. As is almost de rigueur in sentencing matters, I have a report from a clinical psychologist, Ms Amanda Georges. It is lengthy and describes the offender’s background in great detail, provides a psychiatric history, and then comments on a number of tests that she performed. However, when commenting on those tests, she appears not to have gleaned what she sets out in paras 9.3 and 9.4 of her report. Testing for Impression Management was much above average. Testing for Self-Deception Enhancement was said to be average and the total score for those tests was “much above average.”

38. In paragraph 9.4 she said this:

“This profile is usually found in individuals who are aware of their shortcomings, but who want to appear publicly acceptable. Because the elevated IM score, test results are likely to be overly positive. Implicit or explicit demands of the situation may have promoted socially desirable responding. Overall: Probable overly positive self-presentation; high likelihood of invalid responses.”

Nevertheless, she reported on the remaining tests uncritically.

39. Paragraphs 10.6 and 10.7 of her report are these:

“Mr Byrne’s experience of incarceration has been repeatedly traumatic and counter-therapeutic. In his account, his early custodial stints involved being robbed, assaulted, and forced to adapt to a hostile, hyper-masculine environment. Over time, he reported being numb to the setting, a psychological adaptation he found profoundly disturbing. He described the prison environment as disempowering, reinforcing his belief that he had little value and no future. Rather than serving as a site of reflection or reform, imprisonment appeared to compound his trauma, erode his identity, and reinforce the very psychological vulnerabilities that contributed to his offending.

Mr Byrne’s circumstances align with principles outlined in Bugmy v R [2013] HCA 37 [‘Bugmy’]

, which recognise that the effects of early deprivation and trauma do not diminish with time and may impact moral culpability. His history reflects cumulative disadvantage developmental adversity, chronic mental health symptoms, unstable accommodation, homelessness, fractured relationships, social exclusion and institutionalisation. These intersecting vulnerabilities have created a lifelong cycle of disconnection and relapse, which he is only now beginning to break.”

It is not a psychologist’s role to tell the Court what the law is, nor to advocate as if she were a lawyer.

40. In its submissions, the Crown said this:

“The offender also relies upon a report under the hand of Ms Amanda Georges, psychologist, dated 8 May 2025. Ms Georges also concluded that the offender presented a ‘moderate’ risk of recidivism. The report details the offender’s background in some detail; notwithstanding some hardships reported in the offender’s upbringing, it is respectfully submitted that such is a rather unremarkable background overall. The contention that the offender’s background brings into play Bugmy-type considerations is not conceded by the Crown. Likewise, whilst mild psychological diagnoses are posited, it is submitted that it is difficult to accept that such would lead to a particular hardship in custody in circumstances where the offender himself reported adapting to custodial settings almost too well (at [6.2]).”

41. The Crown’s submission, in that regard, is one that I accept. Ms George’s suggestion of a Bugmy background is not based upon the offender not growing up in a loving or caring family, or being deprived of the essentials of life such as food and shelter and the like, but rather because he had a medical problem which caused some difficulties in his youth.

42. He suffered in his youth from a form of hypotonia which made him non‑verbal for the first few years of life, and only able to produce vowel sounds. A formal diagnosis was eventually made through the Cleft Palate Centre at the Royal Alexandra Hospital for Children where he began in physiotherapy. He had speech therapy for over 12 months and made substantial improvements, ultimately developing normal speech by eight years of age. There was, unfortunately, an experience of excessive dribbling which caused some bullying when he was a boy, and that may have continued into his high school years. However, that is not sufficient in my view to qualify the offender’s background as being “Bugmy” like.

43. I am confident that, provided the offender maintains his current attitudes to life, maintains all that he has learnt from his rehabilitation, stays on the path that he has chosen for himself, that his prospects of rehabilitation are very good. Therefore, the corollary that he is unlikely to reoffend is also to be expected.

44. But for the rehabilitation that he had undergone, a much heavier sentence would be imposed than I intend to impose. Nevertheless, I am bound by certain sentencing principles to impose a sentence. The offender must be deterred from doing again what he has done so often in the past. As I said, I am confident that he will not reoffend provided he maintains his current attitudes.

45. The Sentencing Assessment Report (‘SAR’) tells me that there is a medium risk of reoffending which, again, is the formulation made by Ms Georges. The SAR also proposes a supervision plan which appears to me to be adequate. It is set out in the bottom half of page 3 of a five page report.

46. The first thing that I must do is deal with the offender for the backup offences, the ones that are contained on the Certificate under s 166 of the Criminal Procedure Act 1986, however there is one thing that I should say. The offender was, as I said, arrested on 20 October 2023. He was released into the custody of the Restoration Centre on 19 March 2024. He, therefore, spent five months in prison before going to the Restoration Centre. However, part of that five months must be attributed to the call up for his breach of the CCO imposed on 11 June 2021, because of his breaches of the CCO on 18 June 2022. Whilst the Local Court imposed a three month period of imprisonment for the breach of the CCO, I will allow only one of the five months in question to be referable to that offence, and the remaining four months referable to the imprisonment which commenced on 20 October 2023 for these offences.

47. It has been submitted that I should commit the 16 months which the offender has spent to date at the Restoration Centre as being a form of quasi custody. This has recently been dealt with by the Court of Criminal Appeal in R v Butler [2024] NSWCCA 133 (‘Butler’). The principal judgment was given by Campbell J, with whom Ward P and Button J concurred. In Butler, the facts can be gleaned from the headnote:

“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 18 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 recognisance in the sum of $1000 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.”

48. In his judgment, Campbell J said this:

“44. 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.

45. 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).

46. 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”.””

49. This case is quite different to that of Butler. Of the 16 months that the offender has served at the Restoration Centre, I would allow eight months of that as being equivalent to custody. I add to those eight months the four months that the offender actually served in custody after his arrest on 20 October 2023, but omitting the one month which I have attributed to the breach of the CCO. I, therefore, look upon the offender as having already served 12 months in custody.

50. In my view, I should sentence the offender to three months imprisonment for Sequence 6, supplying 4.43 grams of heroin, to six months imprisonment for Sequence 11, supplying 37.62 grams of Buprenorphine, and to three months imprisonment for Sequence 12, supplying 6.6 grams of 3,4‑Methylenedioxy methylamphetamine known as MDMA. For the two principal counts, I intend to impose an aggregate sentence.

51. The offender is certainly entitled to a 25% discount for all his pleas of guilty. In setting out the sentences for sequences 6, 11 and 12, I have taken that 25% into account. After allowing for a 25% discount in respect of Sequence 9, I have come to the view that there should be an indicative sentence of two years and six months imprisonment.

52. In respect of Sequence 10, again allowing a 25% discount for the offender’s plea of guilty, I have come to the view that the indicative head sentence should be one year and three months. The total of that of course is three years and nine months, but in accordance with the principles relating to aggregate sentence, I reduce the head sentence to three years.

53. The remaining issue is whether that should be served by way of fulltime custody or by way of ICO in the community. Given the offender’s rehabilitation to date, I accede to the proposition that that rehabilitation would be endangered should the offender return to fulltime custody. Furthermore, it appears to me that it is in the community’s interest that the offender not be returned to prison because that will undo that rehabilitation and the offender currently does not offer any danger to the community. Greater danger to the community would ensue were I to send him back to gaol, and he lose the incentive to stay drug and alcohol free. I, therefore, reach the view that the offender should serve the three year sentence by way of ICO in the community.

Sentence

54. Andrew Craig Byrne, on the charge that on 20 October 2023, at Petersham in this State you did supply a prohibited drug, namely 4.43 grams of heroin, you are convicted. I sentence you to imprisonment for three months commencing on 31 October 2023 and expiring on 30 January 2024.

55. On the charge that on 20 October 2023, at Petersham in this State you did supply a prohibited drug, namely Buprenorphine in the amount of 37.62 grams, you are convicted. I sentence you to imprisonment for a period of six months commencing on 31 January 2024, and expiring on 30 July 2024.

56. On the charge that on 20 October 2023, at Petersham in this State you did supply a prohibited drug, namely 6.6 grams of methylenedioxy methylamphetamine, you are convicted. I sentence you to imprisonment for three months, commencing on 31 July 2024 and expiring on 30 October 2024.

57. On the charge that on 20 October 2023, at Petersham in this State you did supply an amount of a prohibited drug, namely 2,068.54 grams of 1,4‑Butanediol, being an amount which is not less than the commercial quantity applicable to that prohibited drug, you are convicted.

58. On the charge that on 20 October 2023 at Petersham you did deal with certain property, namely $600,000 of physical Australian cash and electronic transfer, and electronic funds through your bank account that there are reasonable grounds to suspect was the proceeds of crime, you are convicted.

59. In respect of Sequence 9, I indicate a head sentence of two years and six months, with a non-parole period of one year and ten months.

60. In respect of Sequence 10, I indicate a head sentence of one year and three months.

61. I sentence you to imprisonment for a term of three years commencing today, 18 July 2025, to be served by way of ICO in the community.

62. The terms of the order are:

63. firstly, you must not commit any offence,

64. secondly, you must submit to supervision by a Community Correction Officer,

65. thirdly, you must complete community service work for 500 hours,

66. fourthly, you must participate in rehabilitation and treatment program as directed by Community Corrections, and

67. fifthly, you must abstain from both alcohol and drugs.

You are to report to the Community Corrections office at Windsor by telephone within seven days.

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