Spinks v Director of Public Prosecutions

Court of Criminal Appeal (NSW)|2021-12-06|Before: Basten JA, Wright JJ

Solicitors: Potts Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2019/341176 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 1 March 2021 Before: McLennan SC DCJ File Number(s): 2019/341176

Background circumstances

The agreed statement of facts which was adopted by the sentencing judge set out in some detail the circumstances by which a parcel sent to an address nominated by the applicant, namely Australia Post, Tweed Heads, was intercepted by police and found to contain a bag containing 124.3 grams of MDMA, of 75% purity, giving a quantity of 90.74 grams of pure MDMA. The applicant was arrested when he collected the parcel and his phone was seized. The police also conducted a search of the premises in which he was then living with his parents in Tweed Heads. Some items of drug paraphernalia were recovered. The weigh bill for the package indicated that it had originated in the UK.
The sentencing hearing commenced on 26 February 2021. The applicant gave evidence, which contained important information relied on by the sentencing judge to complete the details of the importation and the personal circumstances of the applicant at the time. Key passages in the applicant's evidence read as follows: [1] "Q. What can you tell us about the period of time, roughly how long had you been using stimulant type drugs before you were arrested? A. Stimulant type drugs, probably over a year. Q. And how frequently were you using those drugs? A. Two to three times a week on average. Q. And the drugs that you were using, was it principally MDMA or a mixture of things? A. And - and cocaine. Q. Two to three times a week? A. Yes. Q. In what kind of social setting? A. Parties and nightclubs. Q. Did you have a group of friends who were also taking drugs of that kind? A. Yes, at the time I did. Q. And leading up to your arrest, how had you been sourcing the drugs that you were consuming? A. Locally from people and strangers and - Q. And strangers? A. Yeah. Q. Whereabouts? A. When I was out, when I was at parties or at nightclubs. Q. And focussing on MDMA? A. Yes. Q. Roughly what were you paying, say per gram or you tell us how you were buying it? A. 120 to 200 per gram, but sometimes I would get it for free. Q. From whom? A. From my friends. Q. Did you have a job? A. Yes. Q. What were you earning? A. I was earning at least 500 a week, roughly. Q. You told us you had been living at your parents' house for about 15 years, was there any time during this drug use phase where you were living somewhere else? A. No, I have always lived at home. Q. And when you were in the drug using phase, were you paying any board to mum and dad? A. No, I had no expenses. Q. How much of your regular income was being consumed by your drug habit? A. The vast majority. Q. Which was, did you tell us roughly what you were earning a week? A. At least 500.
The applicant further gave evidence that he downloaded software which allowed him to obtain access to the dark web where he found a site which sold drugs. Information on his mobile phone had indicated that, on 10 October 2019 he had deposited an amount of $5,200 into a bank account, and had used the proceeds to purchase bitcoin. In his findings, the judge accepted that "[he] and a group of four other friends pooled their finances and came up with the purchase price of $5,200." [2]
He also gave evidence that at the time he made the purchase he was "under the impression [the drugs] would come from within Australia." [3] He said that was what he saw in the advertisement, but he had been unable, after his arrest, to locate the advertisement. He agreed, however, that it was "entirely possible the drugs might come from overseas". [4]
When he obtained tracking numbers from a logistics company, he became aware that the supplier was overseas. He said he felt "horrified", because of the "extra risk" and because he believed it was "safer if it was coming from within Australia." [5] He identified the "extra risk" as involving risk of police detection and incurring larger penalties if caught.
For reasons which are not entirely clear, the prosecutor commenced the following line of questions: [6] "Q. Now, I understand that some other people provided you money to assist in purchasing these drugs, did you or any of those other people intend to sell the drugs to anyone? A. No. Q. And did you believe any of your friends may be intending to sell any of the drugs to anyone or supply them to someone else? A. It was under my belief that they wouldn't. I was under the belief that they wouldn't. HIS HONOUR: Q. Sorry, you were under the belief that they would not sell to others and that they would not supply to others? A. Yes."
The evidence that neither the applicant nor other people in the group intended to sell the drugs gave rise to a concern on the part of both the sentencing judge and the prosecutor. Section 307.2 of the Criminal Code reads as follows: 307.2 Importing and exporting marketable quantities of border controlled drugs or border controlled plants (1) A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant; and (c) the quantity imported or exported is a marketable quantity. Penalty: Imprisonment for 25 years or 5,000 penalty units, or both. (2) The fault element for paragraph (1)(b) is recklessness. (3) Absolute liability applies to paragraph (1)(c). (4) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products. Note: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).
The concern raised was that the evidence given by the applicant engaged the defence under s 307.2(4).
The sentencing judge assumed that the last passage of evidence as to the absence of any intention to sell was inconsistent with a plea of guilty. What other offence may have been committed was not explored. Possessing an unlawfully imported border controlled drug would carry a sentence of imprisonment of 2 years, pursuant to s 307.7. Having identified an apparent inconsistency, the judge said to the applicant's then counsel, Mr Cochrane, "You can do one of two things. You can get some instructions from your client about how your client wants to proceed or I will simply be listing this matter for trial." [7] The discussion between the judge and Mr Cochrane included the following exchange: [8] "HIS HONOUR: Yes, now that is all we need to know, Mr Cochrane, either he is adhering to it or he is recanting from it. And all I need to know is if he is recanting from it, why on oath he told me something that was untrue. I will let you get some instructions about that and then we will proceed."
What followed may be described as a reluctant recantation. It included the following exchange: "Q. Can you say to this Court that you believed they would not possibly sell amongst your broader group? A. I didn't believe they would not. HIS HONOUR: Q. Did you believe that they would? A. Yes, I believed it was possible."
By way of further cross-examination, the prosecutor asked: [9] "Q. Mr Spinks, you have described it as possible that you or these other friends may have sold drugs, but did you or your friends, to your knowledge, have an intention to sell drugs? A. There was no, no plan to sell drugs or become drug dealers or anything like that. Q. When I asked you these questions earlier, they were broken up into two separate questions, one about your intention, one about your own friends, your friends' intention. You have now said that you were confused. Do you really think it is plausible, sorry, I put to you that it is not plausible that you were confused by those two questions. That you are now trying to explain away why you have given inconsistent evidence to the Court? A. Yeah, I think that is correct."
The sentencing judgment referred to his original denial of intention to sell the drugs and absence of belief that his friends intended to sell the drugs: [10] "This part of his evidence if established to be true on the balance of probabilities would provide him with an absolute defence to the charge. Madam Crown appreciated this point immediately. Apparently neither the offender nor his legal representatives did …. I gave his counsel an opportunity to clarify his instructions having indicated that I was minded to list the matter for trial otherwise. On the resumption of the hearing and in response to a structured leading question from counsel, the offender agreed that it was possible that if a 'Pretty girl in a night club' approached him for drugs, he may have sold some for $50 and that it was possible that his friends might have done the same. I assume that what I was meant to infer from that is that at the time of importation he did intend to sell and or believed his friends would or that he had abandoned any attempt to persuade me to the contrary. That impression was reinforced when I asked him the specific relevant question concerning his intent at the time and he answered that it was possible that he intended to sell some of the drugs (or his share of them). This attempt at impression management or minimisation of his criminality is consistent with the profile obtained of him by the clinical psychologist Dr Paul Bowden...".
Although it did not directly form part of the appeal grounds, this aspect of the sentencing hearing was troubling. What the judge did not note was that the evidence as to intention (or in fact absence of it) was elicited by the prosecutor in cross-examination. Instead of giving the prosecutor the opportunity to consider an alternative charge, the judge in effect placed the applicant in the invidious position of either conceding that he had lied on oath, or requiring him to stand trial for the extremely serious offence with which he was charged. Arguably, there was no need for the judge to enter the fray. It is doubtful that the evidence in question had the significance attributed to it. The applicant had taken money from his four friends, bought the drugs and supplied them to the friends. It is not clear why that conduct (which was admitted) was insufficient to negate the defence.
The resultant reluctant recantation led the judge to draw an adverse inference as to the applicant's "impression management or minimisation of his criminality". This relied upon language used by the psychologist, Dr Bowden, in his report dated 19 February 2021. It is true that, at par 37, Dr Bowden made the following observation: "With respect to positive impression management, the client's pattern of responses suggests that he tends to present himself in a consistently favorable light, and as being relatively free of common shortcomings to which most individuals will admit. He appears reluctant to admit to minor faults, and he may minimize problems or other areas where functioning might be less than optimal."
Those observations were made under the heading "Profile Validity" in explaining the findings of a "Personality Assessment Inventory" being formal psychological testing administered by the psychologist. The description bears upon the psychologist's conclusions: without raising the matter with counsel, the use of that material to judge the credibility and reliability of an offender giving evidence on oath may have been inappropriate and certainly contained an element of unfairness. That use confounded the unfairness in the means by which the evidence was obtained.
There is one further consideration which should be taken into account in considering intention to sell. The judge identified two indicia of the value of the drugs in this case in the following terms: [11] "… firstly, there is the purchase price of $5,200, secondly, there is his own evidence that he would purchase a gram of MDMA (of unspecified purity) for $120 per gram meaning that 90 grams pure would sell for $10,800."
The judge accepted evidence that he and four other friends had pooled their resources to purchase the drugs. The judge made no finding that the applicant was to obtain a disproportionate share of the importation, although his evidence was that he put in a third of the funds. [12] It followed that his share may have had a "street value" of some $3,600 (one-third of $10,800). The judge also accepted that he was spending some $500 per week on drugs. At that rate of consumption, the applicant's share of the imported drugs would have lasted him for less than two months. Given the trouble to which the applicant and his friends had gone to obtain the drugs, it may be doubted that any significant part of his share would have been resold. Although the defence required that there was no intention to sell "any of the border controlled drug", there would be a marked disparity in moral culpability as between an intention to sell and profit from the whole of the importation, and a recognition that some small part might be sold but the bulk would be consumed by the importer. The fact that most would almost certainly have been consumed by the applicant was an inference properly available from Dr Bowden's diagnosis of a form of addiction described as "substance abuse disorder".
In assessing the objective seriousness of the offending, the judge had regard to four factors. [13] The first was that the offender "engaged in a straightforward and yet clandestine attempt to import drugs." The second was that his "professed reason was to save money and at the same time, ensure good quality." Those factors are largely neutral in assessing objective seriousness. They were simply elements of the importation offence.
The third factor included a number of elements, namely (i) the applicant was "the principal of a small group of likeminded individuals who were part of a larger group of young drug takers (approximately fifty in number)"; (ii) he proceeded with the venture after becoming aware that the drug was to be imported and in the face of knowledge that there were "increased penalties for such criminal activity"; and (iii) he obtained 90 grams of pure MDMA. That he was the principal of a group of importers would be significant if there were an issue as to disparity in sentences. The fact that he was only one of five, although the one who organised the importation, is relevant because his own financial contribution was in the order of $1,700 and his share of the pure drug was in the order of 30 grams (one-third of the 90 grams).
The fourth factor was the value, the calculation of which has been noted above. While it was entirely proper to have regard to the size of the overall transaction, it would also have been appropriate to take into account the applicant's share.
In this context, it may be noted that, in identifying the threshold for a marketable quantity of MDMA as 0.5 grams of pure drug, the judge stated: [14] "Put simply, the quantity here is 180 times the marketable quantity." The judge also noted that the commercial threshold was 500 grams; he might have observed that the total quantity in issue was some 18% of the commercial threshold.
Accepting the inherent vagueness in measures of objective seriousness, for which there is no standard point of reference, it is necessary to understand the judge's finding that "this offence falls just below the mid-range of objective seriousness." [15] As has been said in other cases, it is never easy to know whether in a particular case (where there is no issue of a standard non-parole period) the mid-range encompasses anything between 30% and 70% of a most serious case, or refers to a range of perhaps 40% to 60%. Yet the consequences for sentencing must depend upon which understanding is to be adopted.
Both grounds 1 and 2 relate to the personal circumstances of the offender and how they were taken into account. With respect to ground 3, there can be no doubt that general deterrence is to be given relatively high significance in imposing a sentence for importation of drugs. Ground 3 can only have relative significance and must therefore be considered in relation to grounds 1 and 2.
Ground 4 (manifest excess) cannot be made out unless there has been some misapplication of proper principle of the kind to be addressed with respect to the other grounds. Accordingly, it is convenient to turn to the manner in which the judge dealt with the personal circumstances of the applicant.

Ground 1: youth, rehabilitation and prior good character

There are two strands running through the cases dealing with the way in which youthfulness is addressed in sentencing offenders in adult courts. Thus the principles relied upon by the applicant were those set out by McClellan CJ at CL in KT v R, [16] as summarised by Bellew J in Tamer v R, [17] and by Hodgson JA in BP v R. [18] In BP, acknowledging the well-established principles in relation to young offenders, Hodgson JA stated three general propositions: "[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors."
Counsel for the Director placed emphasis on recent observations of Bathurst CJ in Abdul v R, [19] however, it should be noted that the Chief Justice commenced by setting out the statements of Hodgson JA in BP repeated above. [20] The Chief Justice also noted observations of Redlich JA in the Victorian case of Azzopardi v The Queen, [21] including the statement that young offenders are "more prone to ill-considered or rash decisions" and that they "may lack the degree of insight, judgment and self-control that is possessed by an adult." Redlich JA also considered that the court should "recognise the potential for young offenders to be redeemed and rehabilitated" as they are at a stage of mental and emotional development that may be open to influences designed to change their behaviour for the better.
Reliance was placed by the prosecutor on the discussion in the Chief Justice's judgment at [45]-[48]. But it must be noted that that discussion was premised on the particular circumstances of the case, involving an offender who, whilst aged between 20 and 21 when the offences took place, was described as playing a "pivotal role" in an organisation distributing commercial quantities of a number of prohibited drugs. [22] He was the director of the activities of a criminal group. The sentencing judge, the Chief Justice said, "correctly described his role as 'the entrepreneurial force and prospective empire builder utilising the services of others to make deliveries'."
Findings made in such cases are likely to reflect their own particular facts; the findings themselves provide little guidance as to how the principles may operate in other circumstances.
However, a finding that the facts of a particular case do not demonstrate that the offender acted impulsively or with immaturity or was naïve, does not mean that there is some onus on an offender to establish an affirmative case. What is more, it would be wrong to rely on the offender's own character evidence to demonstrate that he was not immature or impulsive. Yet that was the case which the submissions for the Director sought to make in the present matter. Thus the written submissions stated: [23] "The applicant's character references also did not evidence that he was an immature or impulsive person. On the contrary, they demonstrate he was a mature and conscientious young man."
There is no doubt that the sentencing judge gave genuine and proper consideration to a number of aspects of the personal circumstances of the applicant. The judge noted that the applicant was bullied at school and developed a level of social anxiety which led him to drug use. He acknowledged that the applicant was "otherwise of good character and has no prior criminal convictions" but focused on the effect of his drug use and the extent to which it was a matter of choice. It will be necessary to return to that analysis shortly.
In that respect, the judge rejected a submission that there was "an element of impulsivity to his conduct", because he was able to maintain employment at Coles. [24] The reasoning continued: "The offender was aged eighteen at the time. He was no longer a child but nonetheless, just an adult. I accept that the important considerations of general deterrence might be moderated on that account. Dr Bowden's opinion is that the offender demonstrated naivety in sourcing drugs from the Dark Web; I disagree. The method is, as I have described both straightforward and clandestine but does not demonstrate naivety of itself. I do not consider that the criminality of the offender is reduced by virtue of his age. Nevertheless, the penalty I impose will recognise that his youth is important in recognising his capacity to rehabilitate. The sentence will be structured in such a way as to provide an ongoing opportunity for him to continue his rehabilitative efforts. I have read the material relevant to the offender's efforts in this regard and I am persuaded that his prospects of rehabilitation are very good; significant efforts have been taken to date. However, the evidence does not suggest that those efforts will be nullified by virtue of a custodial sentence. I do not consider specific deterrence to be of significance in the case, I consider it unlikely that he will offend in this way or any other way again."
Whilst recognising the difficulty in separating the relevant issues, there are, in my view, two levels of tension inherent in that reasoning. First, it is correct to say that an addiction to unlawful drugs is no justification for further offending, at least in circumstances where there has been an element of choice in commencing to use illegal drugs. However, the fact that the element of choice and use of cocaine and MDMA commenced whilst he was still at high school is at least consistent with a choice made at a time of immaturity and impulsivity and without regard to the likely consequences of the conduct. That likelihood was not addressed.
Secondly, the affirmative findings that specific deterrence was not significant and it was unlikely that he would offend again in any way suggests that the offending was a consequence of a bad lifestyle choice made in circumstances of immaturity. That his conduct was deliberate does not mean that he did not demonstrate naivety. He had not yet reached his nineteenth birthday at the time of the offending; Dr Bowden considered that he suffered from anxiety and went through stages of fluctuating self-esteem. The fact that he is unlikely to reoffend, in the judge's opinion, gives weight to Dr Bowden's opinion that, in seeking to purchase the drugs: [25] "He was not fully considering the consequences of his actions or the potential danger he was placing himself and his family in by becoming involved in purchasing this quantity of illicit drugs in this manner." The proposition that his "criminality" was not reduced by virtue of his age reveals error.
There is, however, a further factor in the judge's reasoning. As demonstrated by the passage set out above, the judge was favourably impressed by the rehabilitative efforts which had been taken and said that the sentence would be "structured" in such a way as to maximise those opportunities and prospects. It may be inferred that the structuring he then foreshadowed was the fixing of an 18 month pre-release period, being 50% of the 3 year sentence. On the other hand, the leniency which is to be accorded to a youthful offender with no prior convictions must extend to the sentence imposed, as well as the minimum custodial term. In my view the judge erred in failing to apply accepted principle in that way. The 4 year starting point for the sentence (before discount for the plea) is consistent with that conclusion.
In other respects, ground 1 must be rejected. There is no doubt that the trial judge had proper regard to questions of rehabilitation, and, because it was unchallenged, to his prior good character. It may also be said that ground 1 was somewhat obscurely stated in respect of the applicant's youth. It would not be correct to say that the judge did not have "regard to" that factor; much work must be done by the qualifier "proper". I would understand that to mean that, whilst acknowledging the issue, the judge did not give effect to it by application in accordance with established principle. To that extent, I would uphold ground 1.

Ground 2: substance abuse disorder

The thrust of the reasoning in respect of drug use has already been identified. At one level, the judge appears to have dismissed the relevance of a "substance abuse disorder" and what he described as "an addiction to drugs" as based on a matter of choice, stating that "Mr Spinks was completely able to give up drugs when it suited him to do so." That reasoning is not entirely consistent with the concept of addiction or a disorder. Nevertheless, the judge also stated: [26] "I accept the offender's evidence that he was using a quantity of drugs that indicated that he had in the words of Dr Bowden, 'A substance use disorder,' …." There was a tension between that finding and the finding that Mr Spinks was "completely able to give up drugs when it suited him to do so."
The sentencing judge correctly noted that "as a general proposition, drug addiction is not a matter of mitigation", referring to the judgment of Wood CJ at CL in R v Henry. [27] However, those observations were made with respect to an offence of armed robbery where the claimed element of mitigation arose from the need for funds to cater for a drug habit. [28] Context is important: the context in the present case is to identify the time at which he commenced drug use and the circumstances in which that occurred. According to the history recorded by the psychologist, confirmed on oath by the applicant in giving evidence, that occurred whilst he was involved with a drug-using girlfriend in his final year in high school. The importation occurred, as it appears, some 18 months later. Youth and immaturity were undoubtedly factors to be taken into account in assessing the moral culpability of the offender. That is, the issue as to substance abuse disorder should have been given weight in considering the issues identified under ground 1, but was not a mitigating factor in its own right. Ground 2 should be rejected.

Ground 3: general deterrence

Ground 3 complained that the judge gave "great weight" to general deterrence.
The reasoning of the sentencing judge in this regard should be placed in context. The statements made by the judge demonstrate the tension which can arise in the sentencing process, which has engendered the description of the process as a form of "synthesis". On the one hand, in noting the applicant's age, and describing him as "no longer a child but nonetheless, just an adult" the judge accepted that "the important considerations of general deterrence might be moderated on that account." [29] As noted above, the judge appears to have limited the effect of that consideration to the length of the pre-release period. That issue has been dealt with.
In explaining why he considered that a period of imprisonment involving fulltime custody was necessary, the judge stated: [30] "The difficulty of detecting importation offences and the great social consequences that follow suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case."
The judge expressed his conclusion as follows: [31] "As the Crown submits, the relative ease by which drugs can be accessed using the secret alleyways of the Dark Web by a simple click of the mouse highlights the need for this sentencing consideration (that is general deterrence) to be given great weight, not less weight."
Whether the sentencing judge gave sufficient weight to youth and immaturity is one consideration; otherwise, however, there can be no complaint about the references to the importance of general deterrence in the context of an offence involving the importation of drugs in the manner adopted in the present case. Ground 3 must be rejected.

Ground 4: manifest excess

The ground of manifest excess is generally reserved for a case where no specific error can be identified in the reasoning of the sentencing judge. As described in House v The King, [32] although "[i]t may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." Where a material error has been identified, it is both unnecessary and unhelpful to consider whether, disregarding the error, the court should be satisfied that a substantial wrong has in fact occurred. Rather, as explained in Kentwell v The Queen, [33] the court's function is to determine whether a lesser sentence is warranted, within the language of s 6(3) of the Criminal Appeal Act 1912 (NSW).

(1) procedural matters

Before embarking on the exercise of resentencing, three preliminary points should be noted.
First, it is necessary to explain the process of sentencing adopted by the judge with respect to the Commonwealth offence. Under s 19AC(1) of the Crimes Act 1914 (Cth), in imposing a sentence that does not exceed three years, the court is required to make a recognizance release order. Section 20 relevantly provides: 20 Conditional release of offenders after conviction (1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit: (a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order; (ii) … (iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period. (b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a): (i) if none of the offences is a Commonwealth child sex offence - either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); ….
In sentencing the applicant, the judge stated: "You are convicted. Pursuant to s 20 subs (1) para (b) of the Crimes Act you are sentenced to three years imprisonment. I direct that you be released upon giving security by recognisance in the sum of $2,000 after you have served eighteen months imprisonment."
The complexity of the drafting of the Commonwealth Act is such as to increase significantly the likelihood that a judge in a busy court will make errors in the application of these provisions. Thus, s 20(1)(b) does not in terms require that the judge specify the period during which the order shall have effect. Indeed, the power to set the period, and the limitation on the length of the period can only be achieved by reading the words "upon giving security of the kind referred to in paragraph (a)", as encompassing the conditions to be included in the recognizance, as set out in subpars (i)-(iv) of par (a). Although the structure of the provision is confusing, no other reading requires that the judge specify the period during which the offender is required to be of good behaviour; that is provided in subpar (a)(i). Specification of the period must constitute an essential condition of a valid order, unless it is automatically limited to the balance of the sentence, which appears not to be the case.
Further, it is necessary to have regard to other provisions in s 20, including the following: (2) Where a court proposes to release a person by order made under paragraph (1)(a), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him or her: (a) the purpose and effect of the proposed order; (b) the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and (c) that any recognizance given in accordance with the order may be discharged or varied under section 20AA. … (4) Where an order is made under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person.
It is apparent that the beneficial requirement in subs 20(2) to explain or cause to be explained to the offender the purpose and effect of the proposed order, and the consequences which may follow from a failure to comply with it, do not expressly operate with respect to orders under par (1)(b). However, had that step been taken (and it may have been intended that it should be taken to permit the coherent operation of the legislative scheme) it would have been realised that no time limit had been imposed by the order made by the judge. Whether subs (4) was complied with and, if it was, in what form, does not appear from the materials before this Court.
It may have been assumed by those appearing at the sentencing hearing, who made no complaint about the order pronounced, that the recognizance release order was intended to run for 18 months, being the balance of the 3 year sentence. Whether or not that is so, the order entered on JusticeLink was in different terms: "The offender, CASSIDY JOHN SPINKS, is sentenced [to] a term of imprisonment of 3 years to commence on 1 March 2021 and expiring on 29 February 2024. Execution of the sentence is partially suspended after serving a period of 18 months, pursuant to paragraph 20(1)(b) of the Commonwealth Crimes Act 1914 upon the condition that the offender enter into a recognizance self in the sum of $2000… without security To comply with the following conditions: (a) that the offender is to be of good behaviour for a period of 2 years to date from 31 August 2022 (b) that the offender is to comply with the following further conditions:" No further conditions followed.
The order as recorded provides for a period of conditional release extending for six months beyond the end of the sentence. Section 20(1)(a) provides for a release order which can run for up to 5 years, in circumstances where no imprisonment is imposed. Whether, in circumstances where a fixed period of imprisonment has been imposed, it can extend beyond the period of imprisonment is unclear, as was noted in Mourtada v R, [34] earlier this year. Acceptance that there can be a period extending beyond the end of the sentence demonstrates the importance of the judge fixing the period. He did not do so in open Court in the presence of the offender.
As illustrated by the facts in Mourtada, the errors could have been rectified pursuant to s 19AH of the Crimes Act. Where the error is "of a technical nature" or, "has a defect of form" or, "contains an ambiguity" the court may rectify the error on its own initiative pursuant to s 19AHA. It is possible that the entry of orders in Justicelink were intended to have such an effect. If so, that procedure was quite unsatisfactory. Indeed, the failure to specify the period of the recognizance release order is unlikely to constitute an error of the kinds referred to in s 19AHA(1), although the note to the section suggests that "a material miscalculation of figures or a material mistake in the description of a person, thing or matter" would be a technical error.
Basic procedural fairness, sometimes described as a fundamental principle of the administration of criminal justice, is that the offender must be present and must be sentenced in open court, absent exceptional circumstances. In Lawrence v The King [35] the Privy Council stated: "It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence. … The result is that sentence passed for felony in the absence of the accused is totally invalid."
In R v Cornwell [36] this Court observed: "It would appear that, in the case of a felony, it is a requirement of the law that the prisoner be present at the time of sentence if he is in custody and does not voluntarily waive that right."
The principle has been stated in relation to serious indictable offences (of which this is one). If the whole of the sentence is to be conveyed to the offender in open court, that did not happen in the present case. That constituted a procedural error which this Court should correct.
Secondly, the substantive errors which have been identified above are as follows: 1. procedural unfairness in dealing with the evidence of the offender as to what may have constituted a defence to the charge; 2. failing to treat the evidence given by the offender of limited expectation of sale of any of the imported drugs as a factor mitigating the objective seriousness of the offending; and 3. failing to give proper weight to the youthfulness and immaturity of the applicant at the time of the offending and at the time that he began taking drugs which led to the substance abuse disorder. These enliven the obligation of this court to resentence.
Thirdly, the procedural irregularities were not the subject of submissions in this Court. In other circumstances it would be desirable to allow the parties, and particularly the prosecutor, an opportunity to respond to the observations set out above. The present circumstances do not allow that step to be taken. This judgment will be delivered between the end of term and Christmas. It would be difficult to convene the same Court and hear from the parties before late February or early March 2022. The applicant's pre-release period presently has some 8 months to run. The submission at the oral hearing was that this Court should release the applicant on an intensive correction order. While the Court does not intend to take that step, it is highly undesirable that the applicant be left in suspense as to the date on which he is entitled to be released until well into the new year. Further, there is a public interest in promptly correcting the apparent errors in the sentencing process.

(2) the resentencing exercise

For the purposes of resentencing, significant weight must be given to questions of general deterrence. The sentencing judge was correct to have regard to the applicant's own evidence that he obtained software to allow him to access the dark web, and did so, in pursuance of the agreement with his friends to purchase $5,200 worth of MDMA and knew, before the parcel was received, that it was sourced in the UK. The Court must accept that drug importation is, as the maximum sentences indicate, a very serious form of offending, a source of significant social misery, and is hard to detect or prevent. I therefore agree with the sentencing judge that a significant sentence of full-time imprisonment is appropriate.
There are, however, aspects of the offending which tend to limit its objective seriousness. These include, first, the fact that the amount of the drug obtained, although well above the minimum quantity for the offence of importing a marketable quantity, was also only 18% of the maximum amount before the more serious offence was engaged. Secondly, while the judge was correct to accept that the evidence supported a finding beyond reasonable doubt that an occasional casual sale to a social acquaintance was likely anticipated, there was no basis for concluding that the purpose of the importation was to achieve a profit by resale. Rather the predominant purpose was for personal consumption. Thirdly, although the importation involved 90 grams of pure drug, and was organised by the applicant, the evidence does not permit a conclusion that he was to obtain more than a third share of that quantity, there being five young people involved in funding the importation. It should also be accepted that the quantity which the applicant obtained for personal use would have sufficed for perhaps seven weeks at the level at which he was using the drug.
So far as the personal circumstances of the applicant were concerned, he had no prior criminal convictions of any kind and was a young man of whom his referees spoke highly. His excellent chances of rehabilitation, and the likelihood of compliance with the requirement to be of good behaviour in the future, support the conclusion that he will not offend again. The steps taken towards personal rehabilitation between the time of his arrest and sentencing should also be accepted as mitigating factors. Further, as counsel for the applicant submitted, although his association with drugs may have been a matter of choice, it commenced during his school years when he suffered social anxiety and had been the subject of significant levels of bullying. No doubt the level of addiction to MDMA did not prevent his continuing employment and study, nor did it excuse the offence; however, it was, at its inception, undoubtedly contributed to by youth and immaturity. That in turn contributed to the importation offence.
Taking these matters into account, in my view an appropriate starting point for the sentence was imprisonment for 3 years. The early guilty plea supports a discount of 25%, and therefore a sentence of imprisonment for 2 years, 3 months. I agree with the sentencing judge that a significant period of actual custody is appropriate. In my view the pre-release period should be 15 months. Accordingly, the applicant should be released on a recognizance release order to date from 31 May 2022.
There is then a question as to the period of supervision which should be required. The balance of the term is 12 months; the sentencing judge appears to have concluded that supervision should extend beyond the end of the sentence. I can see the merit in that proposition, which is perhaps increased by the reduction in the sentence now proposed. However, in the absence of consideration as to the validity of such an order, the recognizance release order should be for the balance of the sentence, namely 12 months, terminating on 30 May 2023. The applicant will be required to be of good behaviour during that period. The surety proposed by the sentencing judge, namely a self-surety without security, in an amount of $2,000 should be required. The sentencing judge may have considered further conditions, but none appear to have been imposed; there is no need to impose further conditions now.
The Court should make the following orders: 1. Grant the applicant leave to appeal from the sentence imposed on him in the District Court on 1 March 2021. 2. Allow the appeal and set aside the sentence for the offence of importing a border controlled drug. 3. Sentence the applicant pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) to imprisonment for 2 years, 3 months to date from 1 March 2021. 4. Direct that the offender be released after serving the period of 15 months upon condition that he be of good behaviour for a period of 12 months to date from 31 May 2022 upon the offender entering into a recognizance himself in the sum of $2000 without security.
Although the proposed orders are beneficial to the applicant, they should be explained to him in person when judgment is delivered. A written document setting out the orders will be prepared by the Registrar and provided to the applicant.
ADAMSON and WRIGHT JJ: We have had the benefit of reading the reasons of Basten JA in draft and gratefully accept his Honour's summary of the facts and the reasons of the sentencing judge. We agree with the orders proposed by Basten JA but would prefer to express our reasons separately with respect to ground 1.

Ground 1: alleged failure to take into account the applicant's youth, prospects of rehabilitation and prior good character

We are satisfied that, while the sentencing judge took into account the applicant's youth in determining the ratio between the total term and the recognisance period, his Honour in effect did not take into account the applicant's youth when determining the total term. As Rothman J (Bell P and Button J agreeing) recently said in Byrne v R; Cahill v R [2021] NSWCCA 185 at [94]; 97 MVR 85: "In the case of youth, the law ameliorates the harshest punishment and takes account of the immaturity and less well-developed executive functioning that occurs in a physically underdeveloped mind. In BP v R, Hodgson JA said: '[3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] - [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles. [4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.'" (Footnotes omitted.)
We consider that error has been established in particular when regard is had to the following passage from the sentencing judgment: "The offender was aged eighteen at the time. He was no longer a child but nonetheless, just an adult. I accept that the important considerations of general deterrence might be moderated on that account. Dr Bowden's opinion is that the offender demonstrated naivety in sourcing drugs from the Dark Web; I disagree. The method is, as I have described both straightforward and clandestine but does not demonstrate naivety of itself. I do not consider that the criminality of the offender is reduced by virtue of his age. Nevertheless, the penalty I impose will recognise that his youth is important in recognising his capacity to rehabilitate. The sentence will be structured in such a way as to provide an ongoing opportunity for him to continue his rehabilitative efforts." (Emphasis added.)
Although the sentencing judge did not consider the applicant's sourcing of the prohibited drugs to demonstrate naïveté, youth is more than simply naïveté; it also involves immaturity and an incapacity to appreciate the consequences of one's actions. Once youth was relevant (as we are satisfied it was, for the reasons expressed by Hodgson JA (Rothman J agreeing) in BP v R [2010] NSWCCA 159 at [4]-[6]; 201 A Crim R 379, and accepted by the sentencing judge), in the particular circumstances of the present case the sentencing judge was required to take it into account in fixing the total term, as well as in determining the structure of the sentence to provide an opportunity for ongoing rehabilitation.
As this error has been established, this Court is required to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35], [42] (French CJ, Hayne, Bell and Keane JJ). In these circumstances, it is neither necessary nor appropriate to address ground 4 (manifest excess).

Grounds 2 and 3

We agree that neither of grounds 2 or 3 has been made out.

Re-sentence

We also agree with the sentence proposed by Basten JA: namely, that the total term ought be 2 years and 3 months (after a discount of 25% has been applied to the starting point of 3 years), that the period of full-time custody ought be 15 months and that the recognisance period ought run for a further year post‑release. We regard the ratio between the period of full-time custody and the total term of 55% as appropriate.

Endnotes

Tcpt, pp 5(9)-6(18).
Sentencing judgment, p 4(3).
Tcpt, p 8(3).
Tcpt, p 8(25)-(30).
Tcpt, p 9(5)-(15).
Tcpt, pp 12(40).
Tcpt, p 14(45).
Tcpt, p 15(40).
Tcpt, pp 20(50)-21(12).
Sentencing judgment, pp 5-6.
Sentencing judgment, p 6(4).
Tcpt, 26/02/21, p 7(10).
Sentencing judgment, p 6.
Sentencing judgment, p 1.
Sentencing judgment, p 6.
[2008] NSWCCA 51; 182 A Crim R 571.
[2020] NSWCCA 333.
[2010] NSWCCA 159; 201 A Crim R 379.
[2019] NSWCCA 18.
Abdul at [37].
(2011) 35 VR 43; [2011] VSCA 372 at [34]-[39]; Abdul at [41].
Abdul at [45].
Respondent's outline of submissions, 24 November 2021, par 16.
Sentencing judgment, p 9.
Report, par 83.
Sentencing judgment, p 7.
Sentencing judgment, pp 8-9; R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [273] (Wood CJ at CL).
Henry at [222].
Sentencing judgment, p 9.
Sentencing judgment, p 11.
Ibid.
(1936) 55 CLR 499 at 505; [1936] HCA 40.
(2014] 252 CLR 601; [2014] HCA 37 at [35], [42].
[2021] NSWCCA 211 at [7].
[1933] AC 699 at 708.
[1972] 2 NSWLR 1 at 3C. 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: 16 December 2021

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Judgment (13 paragraphs)

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