Robson-Bolan v R

The facts of the offending

1. The applicant's attempt to import cocaine was unsophisticated, completed "over minutes with the press of a few buttons", [1] and was detected promptly by authorities. The applicant purchased the drugs on the "dark web" from a supplier in South America. He provided his own full name, mobile telephone number and residential address. The parcel containing the drugs was sent to him at his residential address. Australian Border Force examined the package on 17 February 2020. The drugs were concealed inside an aluminium survey ruler. The ruler contained a total gross weight of 390.7 grams of cocaine with a pure weight of just over 300 grams. Investigators replaced the surveying ruler with another item of similar appearance and repackaged the item for delivery. The parcel was then transported to the Canterbury Post Office and New South Wales police officers commenced surveillance of the Post Office. Later that day, 26 February 2020, the applicant attended the post office, showed his identification to an employee, and retrieved the package. He was arrested almost immediately.
2. Following his arrest, police searched the applicant, his motor car and his home address. Investigators located, amongst other things, an international money transfer dated 4 February 2020 in the amount of around US$3,300 and $31,900 in cash. Police also located the almost 183 grams of cocaine that was the subject of the supply offence. Police also discovered the 391 grams of cannabis to be taken into account and other evidence consistent with drug dealing. For example, there were clear resealable bags and a set of "Milo" scales. The accused participated in an electronically recorded interview and made certain admissions as to his residence and state of unemployment.

The applicant's personal case and mitigating circumstances

1. The applicant was a twenty-one year old man with no previous convictions apart from two minor driving offences. He pleaded guilty at the earliest opportunity and the sentencing Judge provided a 25% discount for his plea of guilty in relation to both offences.
2. The sentencing Judge accepted that the applicant was "contrite and remorseful". [2] This finding was based on his plea of guilty and the contents of a letter the applicant wrote to his parents in which "[h]e spoke in emotive and disparaging terms about himself: alluding to a feeling of guilt and 'hating' himself." [3] It was also based on a letter the applicant wrote to the sentencing Judge in which he acknowledged the harm done by his offending to the community and that "a large part of his sense of shame is attributable to the pain that he has caused his parents." [4]
3. A number of documents were tendered on the applicant's behalf in the sentencing proceedings. This included positive references from family and friends in which the applicant was described as respectful, polite, caring, helpful and sensitive. He was also described as loyal and steadfast as a friend, as a good-humoured young man who was considerate and gentle. The applicant's parents also provided positive evidence and indicated that he enjoyed ongoing family support.
4. An important document tendered in the sentencing proceedings was a psychological report prepared by Ms Serena Cauchi. Some of the opinions in that report were accepted by the sentencing Judge, as was the rather distressing personal history provided by the applicant. The applicant was a very shy, awkward and overweight young man who felt weird, lonely and different. He had difficulties concentrating at school and developed self-harming behaviours including cutting himself when he was just 14 years of age. He would cover his arms to conceal his scars.
5. The psychologist indicated that the history supported a finding that the applicant experienced a major depressive illness during the course of his adolescence: "He reported low mood, feelings of sadness and emptiness, impaired concentration, irritability, appetite fluctuation, lack of enjoyment in activities, diminished motivation and low self-worth. He also reported experiencing a high level of anxiety and panic attacks, including breathlessness, palpitations, trembling, shaking, dizziness, paraesthesia ('tingling' in the fingers) and numbness. He reported thinking about 'going to sleep and not waking up' and has had suicidal ideations although he reported that he will not suicide because of the 'pain it would cause his mother'."
6. The psychologist said the family were not "psychologically sophisticated" and this was confirmed by the applicant's mother both in consultation with Ms Cauchi and in a letter to the Court. She said she "did not believe in depression" and the family's response to the applicant's low periods was to the effect of telling him to "get over it" or "buck up". The applicant started using drugs at a young age. He was using cannabis by the age of 11, experimented with ecstasy when he was 15 or 16, and started using cocaine by the time he was 18 years old. The applicant also reported issues with excessive gambling and alcohol consumption.
7. In spite of his obvious psychological difficulties and spiralling drug abuse, the applicant secured a job as an apprentice butcher after leaving school and worked in the family business for four years. The applicant was considered to be a valuable employee with a good work-ethic by his father and uncle.
8. In September 2019, the applicant's mother was diagnosed with breast cancer and the applicant was greatly affected by her illness. Later that year, he moved out of the family home and into the unit in Canterbury at which time his substance abuse increased. The applicant said his motivation for the drug supply and importation offence was partially to fund his own drug habit, but he admitted that it was also for financial gain. So much was obvious from the finding of over $30,000 cash in his flat.
9. In addition to the applicant's personal history leading up to the offences, there was evidence of the applicant's difficulties since he was taken into custody. He was assaulted on a number of occasions but was reluctant to report the assaults out of fear of reprisal. Ms Cauchi observed an injury consistent with this account in the form of a broken front tooth. The applicant also gained a lot of weight in gaol and made at least one attempt at self-harm.
10. On the other hand, the applicant's time in custody led to some positive changes. He abstained from drugs, developed a strong Christian faith and had been counselled by the prison chaplain, all of which he reports to have had a positive effect on his life and given him perspective on his offending.

A difficult sentencing exercise

1. It will be seen from this brief summary of the objective facts and applicant's personal circumstances that the sentencing Judge was confronted with a typically difficult sentencing exercise. On the one hand, the quantities of drugs were such that the sentencing court was required to give significant weight to principles of both personal and general deterrence. On the other hand, the applicant's personal case, his experiences on remand, his remorse and good prospects of rehabilitation demanded a significant degree of leniency.
2. The sentencing Judge, correctly, described the offending as being at "the low end range of offending of that kind". [5] His Honour took into account the lack of sophistication, including the fact that the applicant's name, 'phone number and address were "conspicuous". His Honour also noted that the quantities of drugs were well short of relevant commercial quantities prescribed under both Commonwealth and state legislation. His Honour made favourable findings in relation to the applicant's prospects of rehabilitation.
3. On the other hand, the Judge was satisfied the applicant was primarily motivated by financial gain and his role might be characterised as the "principal" of the offence, while noting the kind of offending did not involve a large syndicate or criminal enterprise. Whilst the sentencing Judge held the case fell at the low end of offending, it is clear that he correctly recognised the seriousness of the offending and that deterrence and punishment remained significant matters in balancing the various objectives of sentencing. This can be discerned from his Honour's findings that there was some planning involved, ample time for the applicant to reconsider his involvement in the importation, and a degree of "economic harm" resulting from the use of police resources to investigate and detect the offences. [6]

Ground 1: The sentencing Judge erred in his application of the totality principle by:

(a) Failing to give effect to the finding that there should be "notional accumulation"; and/or

(b) Failing to provide reasons in sufficient detail to explain the basis upon which the sentence imposed for the federal offence was wholly accumulated upon the sentence imposed for the State offence.

1. The sentence was structured by imposing a 12-month fixed term for the (State) supply offence and wholly accumulating the 2½ year sentence for the (Commonwealth) attempting to import offence.
2. The applicant submits that his Honour fell into error by failing to give effect to his stated intention in relation to the accumulation. That intention was, in terms, to "notionally" accumulate the sentence whereas the sentence was, in fact, wholly accumulated. In the alternative, the applicant submits that his Honour failed adequately to expose his reasoning for wholly accumulating the sentences. This ground of appeal, which rests on the ambiguity surrounding his Honour's use of the word "notional" must be upheld.
3. The key paragraph of the sentencing judgment in assessing the competing argument under this ground of appeal is at [50]: "The aggregate sentence I impose is intended to reflect the principle of totality. There should, as counsel for the offender correctly acknowledged, be notional accumulation, given that there were separate and distinct offences. Because of the structure of the sentence that I am imposing, reflecting sentences for both state and federal offences, I have not set a non-parole period for the state offence (s 45 of the CSP Act)."
4. The language of "aggregate" sentencing and "notional accumulation" is more apposite in a case where a sentencing judge is imposing an aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). There are many authorities which have referred to "notional accumulation" in this context. [7] Even in such cases there are difficulties in the use of the expression because: "This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures." [8]
5. In the present case, his Honour was not imposing an aggregate sentence. In those circumstances, the phrase is misplaced. Further, there was nothing "notional" about the accumulation in the sentences imposed. The sentences were wholly and actually accumulated. As the applicant submitted, it is difficult to know what his Honour meant by "notional accumulation" in the circumstances of this case.
6. Further, counsel appearing for the applicant in the sentencing proceedings did not at any stage suggest that there should be "notional" accumulation. On the contrary, counsel argued that there should be "some level of accumulation to the supply offence" and, at least implicitly, that the sentences should be largely concurrent. When pressed, counsel made a blunt submission that the extent of the accumulation should be for a period of six months.
7. The relevant passages of Counsel's submissions were as follows: "So your Honour. In my submission, the non-parole period is where your Honour could focus on your Honour's leniency and, in my submission, one year, particularly when compared to those other cases is more than sufficient to satisfy the course for retribution and punishment. … Your Honour may choose to attach some level of accumulation to the supply offence, but in my submission there is very limited evidence with respect to that offence and it is quite different to the other cases in that schedule in the sense that there isn't evidence of hectic commercial dealing." [9]
8. Following the Prosecutor's submissions concerning the commencement date of the second sentence, counsel for the applicant submitted: "Your Honour, just on that issue, with the state offences, there can't be a gap, your Honour. There's two ways your Honour could do it. Your Honour could have a non-parole period and a parole period for the state offence or your Honour could do a fixed term, which is concurrent or partly concurrent that just ends. If it was to be for a short period, for example six months or something of that nature. If your Honour is to fix a non-parole period and a parole period, there needs to be a statutory formula, unless your Honour finds special circumstances. I don't think it would be contention here your Honour would find special circumstances because of his psychological issues also because he's for the first time in custody. …. To be blunt, your Honour, I'd say that a fixed term of six months for the supply offences would capture the criminality and then your Honour could have a period of another six months accumulation for the importation charge. Then the absence of a parole period would be taken into account because there would be the parole period with the Commonwealth offence and that's also the offence for which you're taking into account the schedule offences and they're not going to effect the non-parole period," [10]
9. Nothing in the exchanges between defence counsel and the sentencing Judge reduces the opacity of his Honour's remark that he intended to apply "notional accumulation" to the two sentences.
10. In the course of argument in this Court, counsel for the respondent submitted that by "notional accumulation" his Honour meant "some accumulation". It is impossible to accept this submission in circumstances where the sentences were then wholly accumulated. The respondent's attempts to make sense of the sentencing Judge's statement concerning "notional" accumulation required some verbal or linguistic gymnastics. Counsel for the applicant pointed out in-reply that "notional" does mean, in any context, "some". It is a word with an entirely different meaning.
11. Obviously enough, it was not incumbent on Judge Abadee to accept defence counsel's submissions. However, if his Honour's reference to "notional" accumulation was intended to reflect the exchanges he had with the applicant's barrister, it is clear that the structure of the sentences imposed did not reflect those discussions or that intention. In that circumstance, ground 1(a) must be upheld.
12. Alternatively, as submitted by Mr Howell, ground 1(b) must be upheld because the sentencing judgment failed to expose the reason for imposing a wholly accumulated sentence or how that approach gave voice to principles of totality.
13. It is true, as counsel for the respondent submitted, that the extent to which a sentence is ordered to be served concurrently or consecutively, is a matter in the discretion of the sentencing Judge. [11] It is also true that a sentencing Judge is not obliged to articulate in any particular way the manner in which they have applied the principle of totality, [12] although it is preferable that they do so. It is a task which has been described as "difficult, if not impossible … to do more than state and apply the principle." [13] This is because questions of accumulation are considered to be inherently intuitive and "by their very nature limit the level of transparency that can be provided". [14]
14. However, in the circumstances of the present case, and given the issues raised by counsel during the proceedings on sentence, some explanation as to why the sentences were wholly accumulated was required. As the applicant submitted, at the very least, the "brevity" of the sentencing Judge on this point gives rise to some concern. [15] Given the similar nature of the offending, and their temporal proximity, there was much to be said for a sentence that was substantially concurrent.
15. There were a number of features of the case which militated in favour of a degree of concurrency. [16] Those features included: 1. That the offences were closely linked in fact, each being a drug offence involving the same prohibited substance. 2. They were essentially part of a single episode of criminality effectively culminating on the same day, the day of the applicant's arrest, in February 2020. 3. They were part of the same small enterprise operated and shared the same "combination of motivation that informed this applicant's offending." [17]
16. I am not persuaded in the circumstances of this case that the single reference to the sentence being "intended to reflect the principle of totality" is sufficient to expose the sentencing Judge's reasoning. Whilst his Honour was not obliged to provide any formulaic detail, in this case it was not "discernible from the reasons as a whole and the sentence imposed that the totality principle was applied as part of the instinctive synthesis involved in the sentencing process". [18]
17. For those reasons, I would uphold the first ground of appeal. It is necessary to undertake the sentencing discretion afresh in accordance with the High Court's decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Further, it is not necessary to make a determination whether the sentence was manifestly excessive as asserted by ground two.

Re-sentence

1. In undertaking the sentencing discretion afresh, I indicate my concurrence with the factual findings of the learned sentencing Judge in relation to the assessment of the objective seriousness of the offence. Clearly, these were serious offences requiring a full-time custodial sentence. This was properly conceded by counsel at first instance. The related proceeds of crime and possession offences also added a degree of seriousness to the offending because it demonstrated the relatively lucrative nature of the applicant's drug dealing. Those offences required that greater weight be given to personal deterrence and retribution.
2. Even so, as the sentencing Judge found, they were offences which fell towards the lower end of offending for offences of their kind. The majority of the adverse findings made on sentence were described by the sentencing Judge as those which "inhere in any offence" of drug supply or importation. [19] Apart from his capacity to acquire the drugs through the "dark web", the applicant had "not had any or any real exposure to criminal elements." [20]
3. Further, the applicant's personal circumstances and his awful experiences in custody demanded a sentence involving a substantial degree of leniency. The sentencing Judge held that matters of general deterrence and punishment remained significant, although, because of the applicants personal case and psychological difficulties, would receive less weight than they might otherwise have done in the circumstances of the particular offending.
4. It was necessary to take into account the two additional offences in the s 16BA Crimes Act 1914 (Cth) schedule. This requires the Court to give more weight to personal deterrence and denunciation in sentencing for the Commonwealth offence. This consideration is to be balanced against the other personal circumstances of the applicant, which tend to suggest that those objectives of punishment will have less weight in this case. The Court ought also take into account the efforts the applicant has made whilst in custody to achieve rehabilitation. I would act on the sentencing Judge's findings that the applicant was remorseful and contrite and enjoys good prospects of rehabilitation. In coming to these conclusions, I place significant reliance on his immediate plea of guilty, the letter to his parents, the psychologist's report and the earnest nature of the applicant's letter to the sentencing Judge.
5. I have considered the various comparable cases provided by both parties in their arguments under the second ground. However, sentencing is an individual process and the guidance they may provide as to the permissible range is limited in the particular circumstances of this offender. None of the comparable cases have identical features to the applicant's case. The applicant submitted that the case "stood alone" based on the objective and subjective circumstances of the offending and the "combination of findings in terms of the relevance of the competing purposes of punishment." [21]
6. I have taken into account an affidavit sworn by the applicant in the event the Court moved to re-sentence. That affidavit indicated that his visits in gaol have been greatly restricted as a result of procedures adopted by Corrective Services in response to the COVID-19 pandemic. The applicant has, where possible, continued to engage in programmes and remain healthy and active in custody. He has not had any disciplinary offences and has remained drug free. These matters confirm that his prospects of rehabilitation are good.

Conclusion and Orders

1. Like the sentencing Judge, I have taken into account the relevant factors under s 16A of the Crimes Act 1914 (Cth), the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the competing objectives of punishment at common law. I would order the sentences to be served partially concurrently and would give effect to the principle of totality by commencing the Commonwealth sentence part-way through a fixed term for the supply offence. The sentence for the supply offence will commence on 26 February 2020, being the day on which the applicant went into custody. The sentence for the importation offence will commence six months later.
2. For the supply offence, I would commence with a sentence of 12 months imprisonment and reduce that by 25% for the plea of guilty. This will result in a fixed term sentence of nine months. I would not impose a non-parole period because the Commonwealth sentence will commence part way through that fixed term. For the offence of attempting to import, I would commence with a sentence of three years, reduced to two years and three months by virtue of a 25% reduction for the early guilty plea. I would set a recognisance release order expiring 18 months after the commencement of the Commonwealth sentence.
3. The result would be a total sentence of 2 years and 9 months with a minimum period of custody of 2 years.
4. I would make the following orders: 1. Application for leave to appeal granted. 2. Appeal allowed. 3. Quash the sentences imposed in the District Court and in lieu thereof sentence the applicant as follows: 1. For the supply offence, the applicant is sentenced to imprisonment for a fixed term of nine months commencing 26 February 2020 and expiring 25 November 2020. 2. For the attempt to import offence, the applicant is sentenced to imprisonment for two years and three months commencing 26 August 2020 and expiring 25 November 2022. 3. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), upon giving security in the sum of $100, the applicant is to be released on a recognisance release order after one year and six months, that is, on 25 February 2022.
5. IERACE J: I agree with Hamill J.

Endnotes

1. R v Robson-Bolan [2021] NSWDC 48 at [10].
2. R v Robson-Bolan [2021] NSWDC 48 at [34].
3. R v Robson-Bolan [2021] NSWDC 48 at [33].
4. R v Robson-Bolan [2021] NSWDC 48 at [32].
5. R v Robson-Bolan [2021] NSWDC 48 at [17].
6. R v Robson-Bolan [2021] NSWDC 48 at [8] and [15].
7. See, for example, Burgess v R [2019] NSWCCA 13 at [40], Vaughan v R [2020] NSWCCA 3 at [117], Kliendienst v R [2020] NSWCCA 98 at [79]-[102], Lee v R [2020] NSWCCA 244 at [32]-[34] and Noonan v R [2021] NSWCCA 35 at [33].
8. JM v R [2014] NSWCCA 297 at 40,and see generally at [39]-[40]. See also Lee v R [2020] NSWCCA 244 at [32]-[34].
9. Tcpt, 26 February 2021, p 12.
10. Tcpt, 26 February 2021, p 15-16.
11. Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [37], R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66; at [7]; R v MMK [2006] NSWCCA 272 at [11]-[13], Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41, R v XX [2009] NSWCCA 115 at [52]; (2009) 195 A Crim R 38 at [52].
12. JT v R [2012] NSWCCA 133 at [73] and Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [42].
13. JT v R [2012] NSWCCA 133 at [73].
14. ZA v R [2017] NSWCCA 132 at [88].
15. Appeal Tcpt, 22 September 2021, p 4.
16. See, for example, Cahyahi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].
17. Appeal Tcpt, 22 September 2021, p 3.
18. Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [42].
19. R v Robson-Bolan [2021] NSWDC 48 at [8].
20. R v Robson-Bolan [2021] NSWDC 48 at [10].
21. Appeal Tcpt, 22 September 2021, p 5. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 January 2022