R v Kishinscand

Catchwords: CRIME — drug offences — supply prohibited drug — indictable quantity
SENTENCING — relevant factors on sentence — Form 1 offences
SENTENCING — subjective considerations on sentence — drug addiction — personal use
CRIME — summary offences — custody of knife in public place or school

Legislation Cited: Confiscation of Proceeds of Crime Act 1989
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Poisons and Therapeutic Goods Act 1966
Summary Offences Act 1988
Weapons Prohibition Act 1998

Cases Cited: Baden v R [2020] NSWCCA 23
Bugmy v The Queen (2013) 302 ALR 192
DC v R [2023] NSWCCA 82
Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Giles-Adam v R; Preca v R [2023] NSWCCA 122
Hall v R [2021] NSWCCA 220
Hoskins v R [2021] NSWCCA 169
Jadron v R [2015] NSWCCA 217
Leigh Brown v R [2014] NSWCCA 335
Lowe v The Queen (1984) 154 CLR 606
Muldrock v R (2011) 244 CLR 120
NGO v R [2017] WASCA 3
Parente v R [2017] NSWCCA 284
Pham v R [2013] NSWCCA 217
Postiglione v The Queen (1997) 189 CLR 295
R v Brown [2023] NSWDC 477
R v Henry [1999] NSWCCA 111
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
RA v R [2024] NSWCCA 149
Re-Attorney General's Application under section 37 of the Crime (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
RG v R [2025] NSWCCA 36
Robertson v R [2017] NSWCCA 205
Tukuafu v R [2024] NSWCCA 84

Category: Sentence

Parties: Crown, Pranil Kishinscand

Representation: Crown: C Diebe
Defence: R Rajalingam

File Number(s): 2023/0024515, 2023/00093869, 2023/00170671

JUDGMENT

1. The offender is to be sentenced with respect to offences committed with the co-offender Chanelle Wong, arising from execution of a search warrant at the offender’s residence in Reynolds Street, Balmain.

2. The offender is also to be sentenced with respect to various other offences committed between 8 January 2023 and 23 January 2023.

3. The offences are as follows:

4. For offences committed between 8 January 2023 and 23 January 2023:

(a) H77266649 Sequence 2: Supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. This offence carries a maximum sentence of 15 years imprisonment.

2. For offences committed on 23 January 2023:

(a) H77019363 Sequence 2 (s 166 related): Resist arrest contrary to s 60(1AA) of the Crimes Act 1900*.* This offence carries a maximum sentence of 12 months imprisonment. (b) H77019363 Sequence 7: Supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. This offence carries a maximum sentence of 15 years imprisonment (but is subject to the 2-year jurisdictional maximum of the lower court pursuant to a 166 certificate). (c) H77019363 Sequence 8: Supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. This offence carries a maximum sentence of 15 years imprisonment. (d) H77019363 Sequence 13: Possess knife in public place contrary to s 11C(1) of the Summary Offences Act 1988*.* This offence carries a maximum sentence of 2 years imprisonment. (e) H77019363 Sequence 16: Supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking A**ct 1985. This offence carries a maximum sentence of 15 years imprisonment. (f) H77019363 Sequence 18: Deal with suspected proceeds of crime contrary to s 193C of the Crimes Act 1900. This offence carries a maximum sentence of 3 years imprisonment.

3. For offences committed on 6 September 2023, for which he is to be sentenced with his co-offender Wong:

(a) H78773975 Sequence 6: Possess prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1998*.* This offence carries a maximum sentence of 14 years imprisonment with a standard non parole period of 5 years. (b) H78773975 Sequence 14: Supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. This offence carries a maximum sentence of 15 years imprisonment. (c) H78773975 Sequence 15: Supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act. This offence carries a maximum sentence of 15 years imprisonment.

4. The offender asked the court to take into account:

5. Three counts of supply prohibited drug, including two counts of supply prohibited drug (small qty), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 when passing sentence with respect to H77266649 Sequence 2;

6. One count of possess ammunition contrary to s 65(3) of the Firearms Act 1996 when passing sentence with respect to H77019363 Sequence 13;

7. One count of possess restricted substance contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 when passing sentence with respect to H77019363 Sequence 16; and

8. One count of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 when passing sentence with respect to H78773975 Sequence 14.

9. The offender maintained his guilty plea on the sentence hearing.

10. Admitted on behalf of the Crown was the following:

11. Exhibit C1 - Charge Certificate H77266649

12. Exhibit C2 - 166 Certificate H77266649

13. Exhibit C3 - Form 1 H77266649

14. Exhibit C4 - Charge Certificate H77019363

15. Exhibit C5 - 166 Certificate H77019363

16. Exhibit C6 - Form 1 H77019363

17. Exhibit C7 - Form 1 H77019363

18. Exhibit C8 - Signed Agreed Facts H77266649, H77019363

19. Exhibit C9 - Charge Certificate H78773975

20. Exhibit C10 - Form 1 H78773975

21. Exhibit C11 - Agreed Facts (Joint Agreed Facts with co-accused Wong) - H78773975

22. Exhibit C12 - NSW Criminal History

23. Exhibit C13 - SA Criminal History

24. Exhibit C14 - Custodial History

25. Exhibit C15 - State Parole Authority Documents:

26. Exhibit C15a. Parole order and memorandum dated 18 February 2021

27. Exhibit C15b. Breach of Parole Report dated 16 December 2021

28. Exhibit C15c. Response to memorandum dated 3 January 2022

29. Exhibit C15d. Breach of parole report dated 2 June 2022

30. Exhibit C15e. Parole order dated 15 June 2022

31. Exhibit C15f. Recission order and memorandum dated 4 August 2022

32. Exhibit C15g. Breach of parole report dated 12 September 2022

33. Exhibit C15h. Update breach report dated 13 October 2022

34. Exhibit C15i. Update breach report dated 1 February 2023

35. Exhibit C15j. Parole order dated 15 February 2023

36. Exhibit C15k. Stand over memorandum dated 16 March 2023

37. Admitted on behalf of Defence was the following:

38. Exhibit O1 – Report authored by Forensic Psychiatrist, Dr Richard Furst dated 27 October 2024

39. Exhibit O2 – Supplementary report authored by Forensic Psychiatrist, Dr Richard Furst dated 14 December 2024

40. Exhibit O3 – National Officiating Accreditation Structure certification of completion

41. Exhibit O4 – Intervention hub – emotional wellbeing certificate of completion dated 2 January 2024

42. Exhibit O5 – Intervention hub – strength-based program certificate of completion dated 3 January 2024

43. Exhibit O6 – Statement of Employment and Training issued by Corrective Services NSW dated 3 March 2025

44. Exhibit O7 – Offender work assignments history dated 4 November 2024

45. Exhibit O8 – Letter authored by Services and Programs Team Leader, Fotini Pikos dated 7 August 2024

46. Exhibit O9 – Letter authored by Services and Programs Team Leader, Fotini Pikos dated 13 March 2025

47. Exhibit O10 – Letter of apology authored by the Offender

48. Exhibit O11 – Letter authored by Ms Daniela Anicic dated 19 March 2025

49. Exhibit O12 – Medical history of Ms Ursula Singh authored by Dr Richard Sanders dated 8 November 2024

50. Exhibit O13 – Letter authored by Consultant Neurosurgeon, Dr Omprakash Damodaran dated 8 April 2024

Agreed facts

H77266649

8. On 8 January 2023, following a series of phone conversations, the offender supplied 0.5 g of MDMA (sequence 3). On 12 January 2023, after an exchange of text messages, the offender supplied 1 g (a bag) of cocaine (sequence 4).

9. On 14 January 2023, the offender in a phone conversation, agreed to supply 10 mL of Gamma Butyrolactone (sequence 5).

10. On 18 January 2023, the offender had a phone conversation during which the offender discussed missing methylamphetamine. The offender had 3 ounces (84 g) of methylamphetamine in his possession for the purposes of supply (sequence 2).

H77019363

11. On 23 January 2023, police observed the offender and another person fighting on a street in Glebe. Following the police calling out to them to stop they both ran. Police chased the offender who ignored all directions to stop. Ultimately, a police officer grabbed the offender’s arm and instructed him to stop and sit down. The offender refused and pulled against her in an attempt to avoid being detained. However, police managed to ultimately detain the offender who continued to resist (sequence 2, resist arrest). Upon searching the offender’s pockets, police found $9,935.00 in cash (sequence 18, deal with suspected proceeds of crime). A Porsche car key and an Apple iPhone were also found. A woman subsequently identified herself as the offender’s girlfriend, having just been collected from the airport. The offender denied have any having anything down his pants, despite the offender becoming increasingly nervous. He denied that his car was in the vicinity.

12. Police thereafter conducted a patrol of the area where they located a navy Porsche (registration 0770) approximately 100 metres from the offender’s location. The car keys found in the offender’s pocket unlocked the vehicle. A search of the vehicle revealed a bag in the front footwell containing a wallet, driver’s licence and birth certificate in the name of the offender. Various items were also found in the car including a knife in the front driver's door (sequence 13, possess knife in public place).

13. After being placed under arrest, the offender appeared increasingly affected by drugs and could not follow instructions of attending paramedics. He was subsequently conveyed to Royal Prince Alfred Hospital where the offender was strip-searched in various items were found including drugs. This included two separate quantities of MDMA with a combined weight of 4.32 g (sequence 7 supply prohibited drug), three separate quantities of cocaine with a combined weight of 7.2 g (sequence 8, supply prohibited drug), and two quantities of Ketamine weighing a total of 30.32 g (sequence 16, supply prohibited drugs). Whilst methylamphetamine was also found on the accused, it is unable to be established beyond reasonable doubt as to whether the methylamphetamine found on the offender at this time was in addition to the quantity found on the offender on 18 January 2023 (H77266649/2).

14. Later the same day the police obtained a search warrant for the offender’s unit storage shed. In a Kennard’s storage unit at Camperdown, police found various items including three boxes of firearm ammunition being approximately 130 individual rounds in a golf bag (sequence 14), as well as other items connected to the offender.

15. Police subsequently executed a search warrant for the offender’s unit in Harris Street, Pyrmont locating in a black bag in the bedroom containing 177 strips suboxone strips (sequence 15, possess restricted substance) as well was a notebook containing a drug ledger, a laptop and six mobile phones.

16. Subsequent investigations revealed CCTV footage of the offender’s movements on the morning of 23 January 2023. Police also seized a security camera found inside the offender’s vehicle containing many videos including videos of the offender in a house using drugs with other persons. The offender declined to participate in a record of interview upon his arrest.

H**78773975

17. On the evening of 6 September 2023, police executed a search warrant at a home in Reynolds Street, Balmain where the offender was living with his co-offender. There were other residents in the house, although the offenders were living in the top floor master bedroom.

18. During a walk-through, police located and seized in the walk-in wardrobe of the offender’s bedroom various resealable bags containing methylamphetamine with a total weight of 49.56 g (sequence 2). Also found were two 500 mL bottles containing a total of 963.5 grams of Butanediol (sequence 14) and a further bottle containing 812.3 grams of Gamma Butyrolactone (Sequence 15). Also found was an extendable baton inside a black and red Gucci backpack (sequence 6, possess prohibited weapon). The offender’s DNA was located on the top of the backpack containing the Butyrolactone and on the grip of the extendable baton.

19. Telephone intercept material revealed calls between the co-offenders and others demonstrating involvement in drug supply, including two calls on 19 August 2023 and a further call on 30 August 2023.

20. Police also located seven smart phones, multiple small resealable plastic bags, ice pipes, drug scales, a black satchel containing two sets of drug scales, sponge and empty resealable bags, aluminium foil in a drawer with unused needles, multiple rubber bands in a drawer with numerous resealable plastic bags and seven sim cards inside a resealable plastic bag.

Criminal history

21. The offender's early criminal history (commencing in 2004) relates to various serious driving offences including driving whilst disqualified, driving in a manner that menaces others, police pursuit not stop, and using unregistered and uninsured vehicle. His first drug offence was in 2013 when the offender was also convicted of goods suspected of being stolen. The offender was sentenced to 8 years imprisonment in 2015 for take detain in company with intent to get advantage occasioning actual bodily harm. The offender was released on parole in April 2021 which was to conclude in September 2023. He was therefore on parole at the time of commission of the offences for which he is to be sentenced. The offender was convicted in October 2021 of supply prohibited drug greater than indictable and less than commercial quantity for which the offender was given a Community Correction Order. That order was operative at the time of the commission of the offences. The offender was also convicted of various dishonesty offences in 2015 for which he was convicted with no other penalty.

22. The offender’s most recent custodial infractions are from April 2024 of failing to comply with the Correctional Centre routine and unlawfully use phone.

Breach of parole reports

23. According to a report dated 16 December 2021, the offender had been released on parole in April 2021 for the offence of take detain in company. The offender was breached for failing to comply with a condition not to commit any offences arising from being charged with various offences committed in October 2021. The offender’s previous response to supervision had been satisfactory although towards the end of the breach period the offender had missed several drug rehabilitation sessions and had failed to obtain his medication.

24. In a further breach report from 2 June 2022, the offender was again breached for failing to comply with the condition of not commit any offences following offending in May 2022. Whilst there had been some transgressions, the offender's responses to supervision had otherwise been generally satisfactory. In March 2022, he had disclosed an interest in living a prosocial lifestyle with a desire to focus on family and loved ones. Risk factors included aggression and illicit substance use. On 15 June 2022, the offender’s parole was revoked although in a subsequent determination the offender was to be released in August 2022.

25. In a breach report of September 2022, the offender was breached for failing to comply with the good behaviour condition, having been arrested and charged with custody of a knife in a public place in the same month. The report noted that prior to his arrest the offender had engaged in behaviour change discussions to develop a prosocial lifestyle and to achieve his goals.

26. In an updated breach report from October 2022, the offender had been reported as leaving a residential facility without approval contrary to various parole conditions.

27. A further breach report of 1 February 2023 reported failure to comply with the condition of not commit any offences given his arrest and charging for various offences. It was noted the offender's response to supervision appeared poor given he continued to reoffend, committed serious offences and displayed no consistency in engaging in supervision or intervention to address risk factors. The offender’s parole was further revoked effective 23 January 2023 arising from the offences for which for which he is to be sentenced.

Subjective evidence

Dr Richard Furst – 27 October 2024

28. Dr Furst had previously assessed the offender in December 2023 following a domestic violence offence for which he had previously been sentenced. It was noted that the offender was born in Sydney to Fijian parents, his father having left around the time of his birth. He was raised by his mother and stepfather before they separated although remained cohabitating. In primary school he was subjected to bullying and was in trouble for fighting with other students. He thereafter attended various high schools before leaving at the age of 15. He thereafter lived in Brisbane with his aunt before moving to Adelaide and then returning to Sydney to attempt to complete Years 11 and 12.

29. The offender had described several problems including traumatic memories in relation to his childhood, specifically in relation to his stepfather and the violence towards his mother that he witnessed. The offender told Dr Furst that his stepfather raped his mother when he was about nine years of age. He felt helpless at the time, being unable to intervene. He was close to his mother and had been working various jobs to support the family. He felt he must have been depressed at the time. He undertook various work of an unskilled nature in his late teens and into his twenties. He was involved in a long-term relationship with a beautician for about 10 years from the age of 19.

30. He had never previously been diagnosed with any major mental illness and had not been prescribed any medication. The offender’s symptoms of anxiety and/or depression did not appear to be severe enough or persistent to warrant any specific psychiatric diagnosis.

31. The offender had begun to drink alcohol and use cigarettes at the age of 15 and was also smoking cannabis at that time. He progressed to using amphetamines at the age of 16 when he moved to Adelaide before subsequently using cocaine, ice and MDMA. The offender started using more ice after breaking up with his former partner of the age of 29.

32. Dr Furst referred in detail to the offender's criminal history including spending several years in custody and the more recent domestic offending involving his former girlfriend.

33. The offender had begun living with the co-offender in Balmain from about mid July 2023. The offender acknowledged responsibility for his offending in relation to the drug supply and related offence for which he is to be sentenced. The offender acknowledged he did not like the direction in which his life was moving. He considered he was doing relatively well until May 2022, reflecting a further downward spiral. He acknowledged that due to his previous offending and periods of incarceration he had little to show for his adult years.

34. Having reviewed the various material, Dr Furst considered that the offender met the criteria for substance use disorder as well as personality disorder (with antisocial and borderline traits). It was noted that the offender's drug addiction issues had been chronic and relapsing. His personality disorder was evident from his interpersonal difficulties, emotional instability, relationship instability, pro-criminal associations and pattern of recidivism.

35. The offender appeared motivated to continue engaging in drug and alcohol treatment programs and psychological counselling. The offending took place in the context of drug relapse within a relatively short period of time of leaving rehabilitation facilities. The offender's maladaptive pattern of coping with negative life events, negative memories and disappointment in his life involved regular heavy drug use and falling into dysfunctional relationships with women who also used and/or supplied drugs. His addictive disorder and personality disorder helped to explain but did not excuse his drug supply offending. He expressed considerable regret in respect of the offending for which he is to be sentenced.

36. Various recommendations were made for treatment.

Dr Richard Furst - 14 December 2024

37. Dr Furst reassessed the offender on 25 November 2024. During that assessment, the offender disclosed that he had been sexually abused by a teacher in primary school at the age of 10, being two occasions of abuse over a three-month period. It was in the form of penetrative penile-anal sexual intercourse. The offender reported that at the time he felt isolated, alone and scared of being abused and was confused about what had happened. He also felt scared, alone and unable to trust people, especially authority figures. The offender believed that his drinking, which started in his early teens, and his drug use, related to the abuse he suffered as a 10-year-old as he wanted to “block out" negative feelings and “feel something different".

38. Dr Furst concluded that it was likely the early onset of drinking and drug abuse, and his various disorders, were largely the product/sequelae of his childhood sexual abuse victimisation as a 10-year-old boy. Such abuse was strongly correlated with mental disorder including several symptoms from which the offender suffered.

V**arious certificates of training/employment

39. Various documents showed the plaintiff had completed several courses and employment whilst in custody, including during the most recent period of incarceration.

L**etter from Whitehall and A**ssociates

40. The letter confirmed solicitors were acting for the offender with respect to his claim for damages for institutional abuse, the subject of the more recent report of Dr Furst.

Letter from the offender

41. The letter from the offender was an expression of his remorse for the offences for which he is to be sentenced. The offender indicated that since being in custody he had taken “meaningful steps" to address his offending behaviour and to assist him in preventing future offending. He referred to having completed various courses whilst in custody and now appreciated that it was necessary for him to take positive steps to change his present lifestyle.

M**edical records

42. Medical records demonstrated that the offender's mother suffered various medical conditions including depression and ongoing back pain.

Crown submissions

43. The Crown submissions provided a detailed summary of the offender’s time in custody for the purposes of backdating the offences. Submissions were made as to the relevant principles relating to sentencing for drug supply offences.

44. Apart from drug supply offences relating to both offenders, the Crown conceded the majority of the remaining drug supply offences related to relatively small quantities apart from the primary supply offence of 84 g of methylamphetamine. However, the offences relating to both offenders were serious offences which fell just below the threshold for the commercial quantity. There was some degree of organisation reflected in the indicia of supply found in the offender’s unit. However, the Crown conceded the offending was otherwise relatively unsophisticated. It was accepted that both offenders were users/dealers. It was conceded that there was no evidence as to what the offender was paid or was charging for the supply of drugs, although the Court could be comfortably satisfied that the proceeds of crime, the subject of the separate offence, was likely to be from the proceeds of the sale of drugs.

45. It was the Crown's ultimate submission that the Court would be satisfied the offender had a substantial involvement in the supply of a wide range and significant amount of prohibited drugs. Whilst many of the amounts supplied were small, this would be considered in the context that the offender was being sentenced for a supply of a wide array of different substances which somewhat increased the overall objective seriousness of the offending. The possession of the knife and the prohibited weapon, whilst at the lower end of objective seriousness, would be considered in the context of the drug supply offences.

46. An aggravating factor was that the offender committed the most recent offences whilst on Supreme Court bail for the first two offences. Further, all the offences were committed whilst on parole and the subject of a Community Correction Order and bail for other matters.

47. The offender’s early plea was a mitigating factor. Reference was made to the relevant principles relating to parity.

48. It was noted that the offender provided history to Dr Furst that he attended Connect Global Residential Rehabilitation facility and left after a dispute with a staff member. This was inconsistent with the agreed facts in which offender agreed that he never attended the centre after being released on Supreme Court bail. This misrepresentation calls into question the remaining history.

49. It was noted that Dr Furst did not diagnose the offender with any major mental illness.

50. The Crown referred to the decision in Jadron v R [2015] NSWCCA 217 in the context of the relevance of an offender supplying prohibited drugs to fund his drug use. The Court would take into account that it was likely the offender was spending considerable amounts of money on his drug use.

51. The Crown referred to the recent judgement of Yehia J in RG v R [2025] NSWCCA 36 in which four propositions could be elicited from the various authorities on the issue of causation when considering childhood sexual abuse. The Crown accepts that there may be some reduction in the offender’s moral culpability. It was the opinion of Dr Furst that the early abuse of alcohol and drugs were largely a product of the childhood abuse. In any event, any reduction must be considered in the context of other subjective and objective features of the offending. In particular, the offender was to be sentenced for three separate instances of offending committed in breach of parole and/or bail.

52. The Crown contended that the offender’s prospects of rehabilitation were poor given the material from the state parole authority and his history of offending whilst on conditional liberty. The later more serious drug supply offences from September 2023 were significant in the context of the offender at the time being on strict Supreme Court bail. This demonstrated the offender’s lack of insight into his offending with little genuine remorse and low prospects of rehabilitation. The Court would also have regard to the significant previous criminal record. The offender’s engagement with Community Corrections had been sporadic and he failed to attend appropriate rehabilitation facilities.

53. The Crown contended that ultimately the s 5 threshold had been crossed and that whilst the Court needed to consider all purposes of sentencing, general and specific deterrence were to be given significant weight.

Offender’s submissions

54. In addition to the quantifiable 25% discount for the early guilty plea, the offender was entitled to an additional discount given his expressions of remorse and letter of apology. With respect to the H77266649 offences, there was no evidence of any dissemination of the primary drug into the community. The remaining offences on the Form 1 were for relatively minor amounts and accordingly the sentence for the principal offence would need little adjustment.

55. In respect of the offences H77019363 it was contended that the facts on balance established that the person with whom the offender was fighting was directing the offender with respect to his drug activities, which further established his role as a drug runner. It was contended that the amounts reflected in sequences 8 and 16 (drug supply) were relatively minor amounts consistent with the offender acting as a courier. The resist arrest could be disposed of by way of a conviction with no further penalty in that the offender was drug affected in an emotionally heightened state. The minor amount the subject of sequence 7 could be similarly dealt with by way of recording a conviction with no further penalty. The possess knife offence, taking into account the Form 1 offence of possess ammunition, could simply be dealt with by way of recording a conviction only with no other penalty.

56. With respect to the H78773975 offences, the primary drug supply offences reflect at the lower end of the middle range of offending taking into account the amount of prohibited drugs supplied, the offender’s role, his motivation and surrounding circumstances. The proceeds of crime offence reflected a relatively modest amount and consistent with the offender being at the lower end of the drug hierarchy. Possession of the baton was likely to be for self-protection given the offender's involvement in the drug trade.

57. With respect to the offender's subjective case, whilst it was acknowledged that the offender had an extensive criminal history which disentitled him to leniency, this offending was closely connected to his deprived upbringing, resort to and dependency on drugs which was an underlying factor to the offending for which he is to be sentenced. The offender's criminal history reflected minor offences when he was age 18 and it was only in his later years that the offending became more serious.

58. It was contended that the offender’s deprived upbringing continued to be relevant on sentence in accordance with the principles enunciated in Bugmy v The Queen (2013) 302 ALR 192. Further, the offender’s mental health was entitled to be taken into account in accordance with the principles enunciated in Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1. In the circumstances, the offender was not an appropriate vehicle for general deterrence and the court should give emphasis to rehabilitation in the sentencing exercise. Further, the offender was at risk of institutionalisation given the extended periods in custody to date.

59. Whilst it was acknowledged that the offender’s prospects of rehabilitation could not be regarded as good, the Court would still place some emphasis upon it in the sentencing process. In this context, the offender had been of relatively good behaviour in custody more recently. He had completed various programs whilst incarcerated. He had also continued to work and had now disclosed the significant trauma he had suffered as a child. This provided some closure which was important in the context of rehabilitation. He was prepared to undergo further treatment regimes.

60. It was conceded the s 5 threshold had been crossed and a finding of special circumstances would be made. The Court would take into account principles of totality when sentencing for multiple offences. Given the offender’s traumatic and deprived upbringing, leading to his drug addiction, there would be some measure of leniency afforded. Submissions were also made as to the backdating given the time in custody.

61. In oral submissions it was contended that the offender’s childhood abuse was likely to be cause for his underlying early use of drugs. Further, the offender’s deprived upbringing would provide some explanation for the level of drug addiction in his early years. His criminal history was also consistent with ongoing drug addiction. Emphasis was placed upon a number of the breach reports which clearly demonstrated the offender was struggling with addiction, although he was attempting to make positive efforts to engage in drug rehabilitation programs. There was no suggestion of the offender being involved in further drug use whilst in custody. Emphasis was placed upon a finding of special circumstances and the risk of institutionalisation given the previous significant periods previously served within the prison system. Totality had a significant role to play in determining the overall sentence.

Consideration

62. In Parente v R [2017] NSWCCA 284, the Court (MacFarlan JA, Hoeben CJ at CL, Leeming JA, Johnson J and R A Hulme J) observed at [107] that sentencing in drug supply cases should be approached in a manner consistent with general principles, although it was appropriate that some matters be emphasised. First, it was necessary for the Court to be mindful of the purposes of sentencing contained in s 3A of the Crimes (Sentencing Procedure) Act 1999 (CSPA) which relevantly includes general and personal deterrence as well as protection of the community. It was observed that a consistent message of deterrence was necessary. Community protection was also significant given the social impact of drug use. Secondly, it was necessary for sentencing Judges to remain mindful of the maximum penalty and any standard non-parole periods as legislative guideposts, observing that the drug supply offences were set at a high level. Thirdly, the Court adopted the observations of Simpson JA in Robertson v R [2017] NSWCCA 205 at [50], that where the facts of an offence demonstrate drug dealing to a substantial degree a sentence of imprisonment will ordinarily be imposed. Further, recognition of the serious social implications of drug dealing suggests in the ordinary cases a sentence other than imprisonment will fail to meet the sentencing objectives.

63. In Pham v R [2013] NSWCCA 217 McCallum J observed at [27] that:

“The critical proposition is that the quantity of the drug is a relevant but not determinative measure of the degree of seriousness of the offending. The Court must consider all of the circumstances informing that issue, including the role played by the offender, his or her state of knowledge, the reward to be received and any other relevant indicator of moral culpability or lack of it. That said, as recently explained by Latham J, the quantity of the drug remains a very material consideration in assessing the objective seriousness of a State offence against the Drug Misuse & Trafficking Act.”

64. It is apparent, generally with respect to the offender’s offending, that whilst the offender was clearly a regular supplier of drugs to others, I am satisfied that it remained at a relatively low level, supplying to other users and associates who were likely dealing at a street level. Whilst there was a degree of organisation in the supply of drugs, I am satisfied that it was generally unsophisticated and clearly exposed the offender to detection given his relatively low level in the drug supply hierarchy.

65. With respect to the H77266649 drug supply offence for which the offender is to be sentenced (84 g methylamphetamine), the amount supplied is well in excess of the indictable quantity (5 g) while still substantially below the commercial quantity (250 g). I am satisfied that the offence, while significant, remains a less serious example of drug supply offending contemplated by the section.

66. With respect to H77019363 (sequence 8 - supply prohibited drug), the amount supplied (7.2 g cocaine) is only slightly in excess of the indictable quantity (5 g) and very substantially less than the commercial quality threshold (250 g). Given my earlier findings as to the level of sophistication and the offender’s likely level in the drug hierarchy, I am satisfied that this is a relatively minor example of the drug supply offending contemplated by the section.

67. Sequence 16 (supply prohibited drug – 30.32 g ketamine) is similarly just above the indictable quality threshold (12.5 g) but very significantly below the commercial quantity threshold (1.25 kg). I am satisfied that this similarly reflects a relatively minor example of the drug supply offending contemplated by the section. In so doing, I further accept the offender’s submission that the circumstances in which this offending was detected reflects the offender’s role as essentially a drug runner who was engaged in these activities to feed his own addiction.

68. With respect to sequence 18 (deal with proceeds of crime – $9,935) the value is significantly less than the threshold for this offence ($100,000). However, the Court cannot ignore that the money was found in the context of the offender being involved in the supply of drugs. I am satisfied that this offence reflects a less serious example of the offences contemplated by the section.

69. With respect to H70773975 the two drug supply offences for which the offender is to be sentenced involve significant quantities of each of the relevant drugs, well in excess of the indictable quantity and close to the commercial quantity threshold. Found in the premises were various items being indicia of supply. Further, the telephone intercept material revealed calls between the co-offenders and others showing their involvement in drug supply operation. I am satisfied that each of these drug supply offences reflects the relatively serious example of the drug supply offending contemplated by the section.

70. Sequence 6 (possess prohibited weapon – baton) is a lesser form of weapon contemplated by the section but must be considered in the context of the offender being involved in drug supply operations. I accept the offender’s submission that it was likely in the offender’s possession for self-protection in the circumstances. I accept that this is a less serious example of offences contemplated by the section.

71. The offender's criminal record, whilst not an aggravating factor, disentitles him to leniency. However, an aggravating factor is that the offender was on parole at the time of the commission of the offences for the relatively serious offence of take and detain. Further, the offender was the subject of a Community Correction Order for similar offences of supply prohibited drug. Further, at the time of commission of the offences H77266649 and H77019363, the offender was on Supreme Court bail granted on 28 July 2022. At the time of commission of the offences H78773975, the offender was on Supreme Court bail granted on 3 July 2023.

72. The offender is entitled to a 25% discount on the sentence that would otherwise be imposed for the utilitarian value of the plea of guilty. I am satisfied that the offender’s plea of guilty is a further mitigating factor in that it reflects the willingness of the offender to facilitate the course of justice: Baden v R [2020] NSWCCA 23; Giles-Adam v R; Preca v R [2023] NSWCCA 122. It is also consistent with the offender’s expressions of remorse.

73. I accept the offender’s history provided to Dr Furst that the offender suffered particular hardship during his childhood, most significantly witnessing violence perpetrated by his stepfather towards his mother including witnessing his mother being raped when aged 9. Further, I accept the more recent history provided by the offender to Dr Furst that whilst still in his primary school years he was subjected to significant sexual abuse by a teacher. These experiences no doubt contributed to his tumultuous years in high school resulting in his premature departure, moving interstate before returning to Sydney to complete Years 11 and 12.

74. It is unsurprising in these circumstances that the offender began using alcohol in his teenage years before progressing to various illicit substances which he continued using as an adult. I am therefore satisfied that the offender’s moral culpability is reduced by reason of his childhood experiences including exposure to domestic violence: Bugmy v T**he Queen [2013] 249 CLR 571; Hoskins v R [2021] NSWCCA 169.

75. Further, I accept that the offender’s early and continuing drug addiction, which has substantially contributed to the offender’s offending, does have its genesis in the offender’s difficult childhood experiences: R v Henry [1999] NSWCCA 111; Leigh Brown v R [2014] NSWCCA 335. This is consistent with the more recent opinion of Dr Furst, which I accept, that the offender’s early illicit substance use, and the various disorders identified in his first report, were largely the product/sequelae of the offender’s sexual abuse and victimisation.

76. I am satisfied that the offender’s disorders identified in the psychiatrist’s report, were operating at the time of the offending such that the offender’s moral culpability is reduced with a consequence of reduced weight being afforded to punishment and deterrence: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; Muldrock v R (2011) 244 CLR 120; DC v R [2023] NSWCCA 82 at [74] to [76].

77. However, that is not to say that deterrence does not remain a relevant factor in the sentencing process.

78. Prohibited drugs circulating in the community have a profound effect. As has been consistently observed by the Courts, in respect of sentencing for drug-related matters, there are significant consequences from the circulation of drugs in the community. In NGO v R [2017] WASCA 3, the Western Australian Court of Appeal observed that the illicit drug trade is a “scourge" inflicting significant damage on those who consume the drugs.

79. I accept the offender’s expressions of remorse contained in his statement to the Court and representations to Dr Furst.

80. The offender has demonstrated disregard for court orders regulating his behaviour in the community including breaches of parole, breaches of a Community Correction Order and failure to comply with bail conditions. He has also demonstrated a poor response to supervision and failed to fully cooperate with his drug rehabilitation. This does not bode well for his prospects of rehabilitation. However, there is some glimmer of hope given his more recent revelations to Dr Furst providing insight into his previous offending, arising in part due to his use of illicit substances. Further, the offender appears to acknowledge that he is at something of a crossroads in his life, necessitating a more conscious effort for rehabilitation. This is also likely reflected in the offender’s more recent conduct whilst incarcerated including completing various courses and undertaking work in the prison system.

81. Accordingly, whilst the offender’s prospects of rehabilitation must be considered particularly guarded, they could not be considered as altogether hopeless.

82. I accept that the offender is at some risk of institutionalisation having spent extended periods in full-time imprisonment. I consider there are further grounds for a finding of special circumstances such that there ought to be an adjustment of the statutory ratio of the non-parole period. I accept, given the contents of the report of Dr Furst, that the offender is in need of treatment and support such as that contemplated by Dr Furst which self-evidently is more accessible and available to the offender in the community.

83. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the Court to invoke section 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.

84. The offender asked the Court take into account the offences on the Form 1 attached to each of the offences for which the offender is to be sentenced. In Tukuafu v R [2024] NSWCCA 84, Huggett J (with whom Ward P and Chen J agreed) set out the relevant principles when considering offences on the Form 1 at [129]. Further, at [130] her Honour observed: –

"Taking a further offence on a Form 1 document into account for one or more of these purposes is permissible and may result in an increase in the penalty or sentence ultimately imposed. Where the further offence is relatively minor in its seriousness, it may add little to nothing to the otherwise appropriate sentence. Where the criminality involved in the further offence is significant or substantial, subject to proportionality, its effect on the sentence imposed may be “substantial” (Attorney General’s Application at [18]). However, that effect is not because the further offence increased the objective seriousness of the principal offence. Rather, it is because the appropriate sentence is determined by reference to numerous matters including the objective seriousness of the offence for which the sentence is to be imposed (considered without regard to any further offending on a Form 1 document) and a consideration of whether further offending on a Form 1 document should bear upon any of the purposes described in [129]."

85. With respect to H77266649, there are several additional, relatively minor, drug supply offences that the offender asked the Court take into account. With respect to H77019363, the Form 1 offences relate to a relatively minor offence of possess restricted substance and possess ammunition. With respect to H78773975, the additional Form 1 offence of supply prohibited drug also relates the underlying drug supply offending.

86. I accept that the relevant Form 1 offences place the various substantive offences in context: *Director of Public Prosecutions (*NSW) v TH [2023] NSWCCA 81 at [24]. I am satisfied that the various Form 1 offences demand a modest increase in the penalty that would otherwise be imposed for the underlying offences. Despite earlier observations, there remains some need for personal deterrence and there is some community entitlement in terms of accountability for the offences: R**e-Attorney G**eneral's A**pplication under section 37 of the C**rime (S**entencing P**rocedure) A**ct 1999 No 1 of 2002 (2002) 56 NSWLR 146.

87. The offender is to be sentenced with his co-offender for the two offences of supply prohibited drug (H78773975 sequences 14 and 15).

88. The principle of parity is premised upon the concept of equal justice, requiring that “like should be treated alike" whilst accepting that if there are differences as between co-offenders “due allowance should be made for them": Lowe v The Queen (1984) 154 CLR 606 at [617] to [618]; Postiglione v The Queen [1997] 189 CLR 295 at [301].

89. The offender has a more extensive criminal record than his co-offender. Whilst both offenders were on conditional liberty at the time of commission of the offences, the offender had not only been on parole but was also the subject of a Community Correction Order and had also breached conditions for two separate releases on bail. Whilst I have found both offenders’ moral culpability is reduced by reason of underlying mental health conditions, the offender’s moral culpability is further reduced given my findings of the more abusive upbringing. I accept that both offenders have expressed genuine remorse, however I am satisfied that the co-offender’s prospects of rehabilitation are more optimistic. In all the circumstances, and on balance, the offender’s sentence should reflect a modest increase in indicative sentences when compared to the co-offender. With respect to sequence 14 both offenders have an additional supply on a Form 1. However, with respect to sequence 15 the co-offender has an additional offence of deal with proceeds of crime on a Form 1 whereas the offender does not.

90. With respect to H77266649 sequence 2, supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, and taking into account the three offences of supply prohibited drug on the Form 1, the appropriate indicative sentence is one year eight months from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in indicative sentence of 1 year, 3 months.

91. With respect to H77019363 sequence 8, supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, an appropriate indicative sentence is 10 months’ imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of eight months.

92. With respect to sequence 16, supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, and taking into account the offence on the Form 1, possess restrict substance, an appropriate indicative sentence is 11 months imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in an indicative sentence of 8 months, 7 days.

93. With respect to sequence 18, deal with suspected proceeds of crime contrary to s 193C of the Crimes Act 1900, an appropriate indicative sentence is six months from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of 4 months, 15 days.

94. With respect to H78773975 sequence 6, possess prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1998, an appropriate indicative sentence is one year imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of nine months.

95. With respect to sequence 14 supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, and taking into account the offence on the Form 1, supply prohibited drug, an appropriate indicative sentence is two years 10 months from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of 2 years, 1 month, 15 days.

96. With respect to sequence 15, supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act, an appropriate indicative sentence is two years 4 months imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of one year, nine months.

97. With respect to H77019363, sequences 2, 7 and 13 (and taking into account the offence on the form 1, possess ammunition), pursuant to section 10A the CSPA, the offender is convicted of each of these offences without imposing any other penalty.

98. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ): R v Brown [2023] NSWDC 477 at [90].

99. In RA v R [2024] NSWCCA 149, the Court noted that “the severity of the sentence increases at a rate that is not linear in comparison with the increase in length. That is, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half that time.”

100. Whilst there will need to be some accumulation reflected in the total aggregate sentence, it has a lesser role to play in determining the aggregate sentence given the underlying factual commonality. An appropriate aggregate sentence is 3 years.

101. Given the aggregate sentence is 3 years or less, ordinarily the Court would give consideration as to whether the sentence be served by way of an intensive correction order. However, the accused has not made any submission to the Court to this effect and indeed disavows any submission that the offender serve the sentence by way of an intensive correction order. In any event, given the matters identified in these remarks, in my view community safety and the risk of reoffending overwhelmingly favours the offender serving the sentence by way of full time detention.

102. The offender’s time in custody and various periods of imprisonment imposed create some complexity in determining the appropriate start date for the sentence. The Crown helpfully set out the relevant history in written submissions which is annexed to this judgment.

103. There is no issue that the period in custody from 6 September 2023 to 7 February 2024, being 155 days, has not been taken into account on any previous sentence. Further, the period of custody from 8 July 2024 to today (30 April 2025) has also not been taken into account in any sentence, reflecting a further period of 297 days.

104. The point of contention between the parties was a period of custody from 23 January 2023 (when the offender was charged with H77019363) to 3 July 2023, being a period of five months 10 days. The Crown contended that this period has already been taken into account when the offender was sentenced by Judge Herbert for an offence of assault occasioning actual bodily harm. Her Honor fixed a term of imprisonment of one year one month commencing 29 May 2023 and concluding 28 June 2024. In so doing her Honour took into account periods of presentence custody being 16 May 2022 (date of charge and bail refused for the offence) to 4 August 2022 (80 days) together with an additional 162 days from 23 January 2023 until 3 July 2023. The offender contended that the second period of 162 days should be considered as time served for the offences for which the offender is now to be sentenced.

105. The parties have now obtained the remarks on sentence of Judge Herbert and agree that this second period is not to be taken into account. However, it is agreed that her Honour, because of an incorrect submission by the Crown on that sentence hearing, did not allow an additional 7 days which should be allowed on this sentence. Accordingly, the total time for which the sentence is to be back dated is 459 days. The parties therefore agreed that the starting point for backdating the sentence is 1 December 2023.

106. However, the offender contended that, consistent with the principle of totality, the Court should take into account the total time in custody commencing 7 September 2023. In order to preserve the finding of special circumstances, and taking into account the time served since 7 September 2023, the Court would backdate the sentence to a range of somewhere between two and four months before the notional start date of 27 January 2024. Ultimately, it was submitted the Court would backdate sentence to commence 27 October 2023.

107. The Crown contended that the proposed start date would demonstrate substantial leniency that would essentially fully preserve the 65% ratio and resultant statutory ratio, for the offender’s entire period in custody, some of which is referable to other sentences of imprisonment.

108. As previously noted, the overall sentence, taking into account the total time served in custody, must consider principles of totality. In determining the appropriate start date for the sentence, I have taken into account the total time in custody, my finding of special circumstances as well as the fact that the offender’s entire period in custody includes periods referable to other sentences of imprisonment entirely unrelated to the offences for which the offender is to be sentenced. In all the circumstances, the effective commencement date for the sentence will be 1 December 2023.

Orders

109. I make the following orders:

110. The offender is convicted of the offences.

111. The indicative sentences are set out above. I impose a total aggregate sentence of 3 years’ imprisonment commencing 1 December 2023 to expire on 30 November 2026.

112. I impose a non-parole period of 1 year 11 months to expire on 31 October 2025. The earliest possible date for release is 31 October 2025.

113. With respect to H77019363 sequences 2, 7 and 13, pursuant to s 10A of the Crime (Sentencing Procedure) Act, the offender is convicted of each of these offences without imposing any other penalty.

114. In accordance with the Short Minutes of Consent Order signed by the parties and by me today:

(a) Pursuant to s18(1) of the Confiscation of Proceeds of Crime Act 1989*,* cash in the approximate sum of $9,935 found at Glebe on 13 January 2023 is to be forfeited to the State. (b) Pursuant to s 18(3) of the Confiscation of Proceeds of Crime Act 1989, the Court considers that the value today of the property forfeited is $9,935. (c) Pursuant to s 19(3)(a) of the Confiscation of Proceeds of Crime Act 1989, the Court gives leave that the property forfeited herein be disposed of forthwith.

**********

Annexure – Crown supplementary written submissions on backdating

1. The Crown refers to his Honour’s request that the parties in this matter email our positions as to the range available to his Honour, in respect of the commencement date of the sentence, and the expiration of the non-parole period, noting his Honour’s indication that he will impose an aggregate term of 3 years imprisonment with an approximate 65% NPP.

2. As a starting point, the Crown notes the principles set out in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 88 ALJR 372, which make clear that neither the prosecution or counsel for an accused should be permitted to make submissions to a sentencing judge about the bounds of the available sentencing range (see also - Tatur v R [2020] NSWCCA 255 at [34]-[35] and [83]-[85]).

3. The Crown notes that the application of the principle of totality is an exercise of the sentencing judges discretion, intuitive or instinctive synthesis, and cannot be conducted arithmetically: Pearce v The Queen (1998) 194 CLR 61 at [46]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

4. In light of the above principles, the Crown appreciates, that the task his Honour has asked the parties to undertake is distinct to what was in issue in the above cases, given his Honour has already determined the aggregate sentence, and has asked for a range of potential commencement dates of the sentence, noting the principles of totality and accumulation, in light of the offender’s complex pre-sentence custody and existing sentences of imprisonment.

5. Accordingly, noting that considerations of totality fall within the sentencing judges discretion, the Crown makes the following submissions as to the commencement date.

6. The Crown has set out the offender’s existing sentences and the proposed 3-year sentence, in the attached graph, if it provides any further assistance to his Honour’s considerations of accumulation and totality. The graph includes potential start-dates for the index sentence.

7. The Crown’s position on the commencement date of the sentence is that it should commence on 27 January 2024 (which accounts for the 452 days of pre-sentence custody solely referrable to the index offending). A non-parole period of roughly 65% (23 months) would expire around 26 December 2025. Noting, however, that the offender has been in continuous custody since 7 September 2023, the total minimum period the offender would serve in custody, compared to the total length of this sentence would be a resultant statutory ratio of approximately 76%.

8. The Crown notes that there is no absolute rule that an accumulated non-parole period must comprise no more than 75% of the total sentence, although if it does, the sentencing judge must advert to the impact of that accumulation: GP v Regina [2017] NSWCCA 200. In other words, if a sentencing judge imposes a sentence that cumulates upon an existing sentence, such that the ratio of the total minimum period the offender must serve in custody compared to the total length of their sentence exceeds three-quarters to a substantial extent, then they must acknowledge that circumstance: Harris v R [2023] NSWCCA 44 at [17].

9. Accordingly, the Crown’s submission is that the sentence should commence on 27 January 2024.

10. However, if the Court’s intention is for the effective non-parole period to reflect the finding of special circumstances in this sentencing exercise, the effect of accumulation will be to mathematically alter the ratio between the overall effective non-parole period, and the head sentence: Qoro v R [2020] NSWCCA 276.

11. The most lenient commencement date would be full back-dating to 7 September 2023. The Crown’s submission is that this would result in excessive concurrency with the offender’s sentences for unrelated matters.

12. Out of fairness and for completeness, the date range proposed by the offender’s representative has also been represented in the annexed graph. Commencing the sentence on 27 October 2023 would also, in the Crown’s submission, demonstrate substantial leniency in that it would essentially fully preserve the 65% ratio (it is effectively a 68%) in the resultant statutory ratio, for the offender’s entire period in custody (some of which is referrable to other sentences of imprisonment).