Date of Decision: 7 July 2016
Before: Delaney ADCJ
[2]
Judgment
SIMPSON AJA: I have had the advantage of reading in draft the judgment of Bellew J. I agree with the orders his Honour proposes and, subject to what follows, with his Honour's reasons.
I wish to say something about the Crown concession, made, no doubt, in the proper exercise of the Crown's duty of fairness, in relation to ground one. In what follows I mean to imply no criticism of the Crown, which is to be commended for its willingness to concede error. Nor should I be taken as discouraging the Crown from making concessions in appropriate cases.
I have, however, some reservations as to whether, on this occasion, the concession was fully justified.
As is apparent from the judgment of Bellew J, the concession related to the discount in sentence allowed by the sentencing judge in recognition of the applicant's plea of guilty. The totality of his Honour's reasons for that reduction are expressed in a single paragraph:
"I accept that he is contrite and he has pleaded at the earliest opportunity which entitles him to a discount. I am of the view that although this is a Commonwealth matter a discount in the order of 25% is appropriate. He cooperated with authorities in due course and named some of the people who were, I think, considered to be principles."
I read that paragraph as stating three components of the discount:
1. contrition;
2. that the applicant entered the plea of guilty at the earliest opportunity; and
3. cooperation with and assistance to authorities.
These are long standing bases for mitigating sentences that would otherwise be warranted.
They are now incorporated in statute. By s 16A(2) of the Crimes Act 1914 (Cth) a court sentencing in respect of a federal offence is required to take into account (inter alia):
"(f) the degree to which the [offender] has shown contrition for the offence:
…
(g) if the [offender] has pleaded guilty to the charge in respect of the offence - that fact;
(h) the degree to which the [offender] has co-operated with law enforcement agencies in the investigation of the offence or of other offences"
where those matters are relevant and known to the court.
It is now established that, in accordance with para (g), taking into account the fact that the offender has pleaded guilty to the offence includes taking into account "the utilitarian value" of the plea of guilty: Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4; Huang v The Queen [2018] NSWCCA 70; (2018) 272 A Crim R 266. Just what is encompassed in the "utilitarian value" of the plea is not stated in either judgment. The phraseology is not new.
The Crown's concession was based on the absence in the remarks on sentence of any reference to "the utilitarian value" of the applicant's plea of guilty.
As indicated above, a reduction in sentence referable to the entry of a plea of guilty has long been entrenched in sentencing practice, both at state and federal levels. In Winchester v R (1992) 58 A Crim R 345 at 350, Hunt CJ at CL identified two distinct purposes for reduction: that the plea may be evidence of contrition; and that it may be recognised as:
"…mitigation for the co-operation in saving the time and cost involved in a trial."
His Honour made the point that, in this respect, leniency is afforded:
"…as a result of purely utilitarian considerations. …"
In R v Shannon (1979) 21 SASR 442 the Full Court of the South Australian Supreme Court (King CJ, Zelling, Wells and Mohr JJ, Cox J dissenting) distinguished utilitarian considerations from "remorse, repentance or contrition" as a separate basis for mitigation of sentence in recognition of pleas of guilty.
In Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 a similar distinction was made; Gleeson CJ, Gummow, Hayne and Callinan JJ said:
"22. …a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial."
Their Honours recognised that the extent of mitigation may vary "depending on the circumstances of the case".
In each case the rationale for the "pragmatic" or "utilitarian" reduction was identified as the saving of expense to the community in avoiding the costs of preparation for, and the conduct of, a trial.
In Winchester the utilitarian considerations were expressly linked with the time at which the plea was entered. The underlying reasoning is apparent: the earlier the plea is entered (or indicated or offered) the greater the benefit to the administration of justice in cost and time savings.
These concepts were explored in more detail in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (with specific reference to sentencing practices in New South Wales but, to the extent that the rationale for the reduction in sentence is explained, having obvious potential application also to sentencing for federal offences). Again, the "utilitarian value" of the plea was linked with the time at which it was entered or indicated, which was said to be "the primary consideration" in the quantification of the discount.
In this case (sentencing before Xiao was decided) the sentencing judge did not use the term "utilitarian value". However, it is not apparent to me that, in referring to the plea having been entered "at the earliest opportunity", he was not taking into account the saving in time and cost attributable to the plea - i.e. the utilitarian value. Indeed, I find it difficult to put any other construction on those words. If it is correct that that was what was meant, it is incorrect to say that the sentencing judge failed to take into account the "utilitarian value" of the plea. It was not, in my opinion, necessary that the words "utilitarian value" be used in order to make clear that the benefit to the administration of justice in cost and time saving was taken into account. It is strongly arguable that reducing the sentence because the plea is entered at "the earliest opportunity" is merely another way of recognising its utilitarian value.
The fact, alone, that the sentencing judge did not use the words "utilitarian value" is not conclusive that he did not take that value into account. In Huang, where the sentencing judge did not refer to the utilitarian value of the plea, it was concluded that he had not done so: at [2], per Bathurst CJ (agreeing with Bellew J's reasons in this respect), at [16] per Beazley P, at [23] per Hoeben CJ at CL and at [26] per McCallum J (as her Honour then was) and at [46] per Bellew J.
But in that case the sentencing judge had accepted submissions made on behalf of the Crown to the effect that the offender had not pleaded guilty at the first reasonable opportunity (he in fact pleaded guilty on the Friday before the Monday on which a trial was fixed to commence) and that the decision to plead was a "recognition of the [in]evitable", as a result of which the judge said that "the discount to which he might aspire is mitigated to a significant extent". As a consequence, the discount allowed was specified to be "between 5-10%".
In reaching that conclusion his Honour said:
"I agree that the discount to which he is entitled by taking the course he has, though he does to an extent facilitate the course of justice, should be relatively modest."
This Court construed these remarks as recognition of the offender's (subjective) willingness to facilitate the course of justice, as distinct from the utilitarian value of the saving in cost and court time, and held that the offender had not been afforded due consideration of the benefit to which he was entitled.
In Xiao, the sentencing judge (following then prevailing authority), expressly declined to take into account the utilitarian value of the plea, but followed that by saying that one significant matter relevant to the extent of any reduction in sentence was the timing of the pleas and whether they were entered at the first available opportunity.
This Court held that that offender had been denied consideration of a reduction in sentence referable to the utilitarian value of the pleas, and that that constituted error.
In each of those cases, there were express statements that the utilitarian value of the pleas had been disregarded - for good reason, since that was, until the decision in Xiao, the prevailing view of s 16A(2)(g).
In this case, however, there was no clear indication to that effect, and the reference to the plea having been entered at the earliest opportunity can be taken as an indication that it was the utilitarian value that was the reason for the standard component of the discount. I can think of no other explanation for that reference, when contrition and cooperation were also expressly mentioned.
Nevertheless, the Crown conceded specific error in this respect and the applicant has never been given the opportunity to respond to the views I have expressed above, and they are, accordingly, tentative views stated without the benefit of argument.
Accordingly, on the basis of the Crown concession, I agree with the orders proposed by Bellew J.
ROTHMAN J: I have had the considerable advantage of reading, in draft, the reasons of Bellew J. I agree with his Honour's reasons except as qualified in the following comments. I also agree with his Honour's proposed orders.
While the Court is entitled to be cautious in accepting the untested expression of contrition by the applicant, this expression is, to some extent at least, corroborated by the plea of guilty and level of cooperation. I would allow some credit for some level of contrition.
As to the offer of assistance, I agree fully with his Honour and add the following. It would be almost impossible for an offender to know, or to adduce evidence concerning, the utility or efficaciousness of information supplied to law enforcement or investigating officials.
If there be a lack of evidence as to the usefulness of information provided, the prosecuting authorities are better placed to adduce evidence either of its use or its lack of utility. [1] The applicant gave the names of each person, with whom he had, or was to have, contact, who supplied, or was to be supplied with, drugs. I would have allowed more significance to the aspect of cooperation prescribed in s 16A(2)(h) of the Crimes Act 1914 (C'th) than does his Honour.
I have also had the benefit of reading in draft the reasons for judgment of Simpson AJA, with which, with one possible qualification, I also agree. The expression by the sentencing judge as to the discount was, as has been recited, contained in a few sentences, two of which were:
"I accept that he is contrite and he has pleaded at the earliest opportunity which entitles him to a discount. I am of the view that although this is a Commonwealth matter a discount in the order of 25% is appropriate."
The Crown seems to have conceded error as a result of its construction of the first sentence in the above extract in a manner that utilised the "and" conjunctively, so that the discount was for both contrition and a plea at the earliest opportunity. That construction is open and available.
I would take the view that the "and" in the first sentence of the above extract is disjunctive, in the sense that the phrase commencing with "which" governs or qualifies only the plea at the earliest opportunity. As a consequence of my construction, a 25% discount has been provided for the utilitarian value of the plea, as explained by Simpson AJA. Nevertheless, it is not clear; and contrition is not part of "utilitarian value".
If my construction of the sentencing judge's remarks be correct, then he has taken into account the contrition and assistance otherwise than by the 25% discount. It is appropriate in the circumstances of the concession and some lack of clarity in the remarks to treat the Crown concession as correct and find error, as Bellew J has done.
My preference, in taking account of contrition and assistance, is not to state a percentage discount, unless, for obvious reasons, future assistance is being measured. There is no one correct sentence or method in this area. As long as the sentence accords with the statutory scheme and the principles of sentencing, as much flexibility as possible should be available.
As stated, I agree with the orders proposed by Bellew J.
BELLEW J:
[3]
INTRODUCTION
Helmut Weber (the applicant) pleaded guilty before Acting Judge Delaney in the District Court of New South Wales to an offence of importing a marketable quantity of a border controlled drug, namely methylamphetamine, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for a period of 7 years and 11 months, with a non-parole period of 5 years and 6 months, both of which were ordered to date from 13 June 2015.
The applicant now makes an application for leave to appeal against that sentence on the single ground discussed below. The applicant requires an extension of time in which to bring his application and the Crown did not oppose that extension being granted.
[4]
THE FACTS OF THE OFFENDING
The sentencing judge found the facts of the offending to be as follows. [2]
On 12 June 2015, the applicant arrived at Sydney Kingsford-Smith Airport on a flight from Hong Kong. Upon arrival, he presented his incoming passenger card to an Australian Border Force official and was selected for a baggage examination. Preliminary trace swabs returned a result which was positive for the presence of methylamphetamine. A subsequent x-ray of an IBM laptop computer bag showed inconsistencies within its contents. The laptop was removed from the bag and a separate x-ray conducted, which revealed an abnormality behind the screen. On further examination, five plastic clip-seal bags containing a white powder substance weighing 142.6g were found taped to the underside of the laptop screen. A test of the substance returned a positive result for the presence of methylamphetamine.
Also located were about 200 pages of email correspondence between the applicant and another person (to whom I shall refer as "NV") in which they discussed the illegal purchase of precursors, chemical formulae, scientific methods of mass production of substances, and the building of a laboratory to manufacture methylamphetamine and Quaaludes in South Africa. Documents relating to the manufacture and production of drugs were also located. Material downloaded from a mobile telephone belonging to the applicant included photographs of white powder and crystal-type substances, and laboratory equipment.
The applicant was arrested and interviewed by police. In the course of that interview he stated that:
1. he was the owner of the IBM laptop;
2. he was aware that the substance concealed in the laptop contained methylamphetamine;
3. NV gave him the substance to conceal within the laptop;
4. he estimated that the uncut substance weighed approximately 100g;
5. he was to be contacted on arrival in Australia by the person to whom the drugs were to be delivered;
6. once the drugs were delivered, he intended to stay with a person in Port Macquarie whom he had met online;
7. he was pressured, although not forced, into importing the drugs by NV and another person (FZ) and was offered between $3,500.00 and $5,000.00 to do so;
8. he needed money after the failure of a business project had left him with limited income and no means of returning to Germany;
9. he knew it was illegal to import drugs into Australia.
The gross weight of the methylamphetamine which was imported was 91.1g, and the pure weight was approximately 60.5g. It had a wholesale value of between $19,000.00 and $20,000.00, and a street value of about three times that amount.
[5]
In determining the appropriate discount to reflect the value of the applicant's plea of guilty in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth) his Honour did not have regard to the utilitarian value of the applicant's plea of guilty.
[6]
The reasons of the sentencing judge
The sentencing judge said the following in respect of the applicant's plea of guilty: [3]
In relation to the history of this matter I was reminded that the offender was arrested and charged on 13 June 2015. The matter first came to the Central Local Court on 17 June 2015 and on 18 November 2015 the offender pleaded guilty at the Central Local Court and was committed for sentence. The Crown accepts that he entered his plea at the first reasonable opportunity and that the plea demonstrated an acceptance of responsibility notwithstanding the strength of the Crown case.
His Honour continued: [4]
I accept that he is contrite and has pleaded guilty at the earliest opportunity which entitles him to a discount. I am of the view that although this is a Commonwealth matter a discount in the order 25% is appropriate. He cooperated with authorities in due course and named some of the people who were, I think, considered to be principals.
His Honour then said: [5]
Then I will now indicate the sentence that I propose to impose in this case, noting that there will be a deduction of approximately 25 per cent for the plea of guilty being entered, also taking into account his personal circumstances generally coming to the following conclusion.
[7]
Submissions of the applicant
Counsel for the applicant submitted that in light of the decision of this Court in Xiao v R [6] the sentencing judge had erred in the manner in which he dealt with the applicant's plea of guilty. Counsel submitted, in particular, that the sentencing judge had erred by failing to take into account the utilitarian value of the plea.
[8]
Submissions of the Crown
The Crown pointed out that the sentencing judge had dealt with the applicant's plea of guilty in accordance with the law as it stood at the time, but expressly conceded that in light of the decision of this Court in Xiao (which was handed down a considerable time after the applicant was sentenced) his Honour had erred by failing to take into account the utilitarian value of the plea. In making this concession the Crown submitted that the error of the sentencing judge was reflected in the fact that his Honour had made no reference to the utilitarian value of the plea in the course of his sentencing remarks.
[9]
CONSIDERATION
In Xiao this Court concluded that when sentencing a person who has pleaded guilty to a federal offence, a sentencing judge is entitled to take into account the utilitarian value of that plea pursuant to s 16A(2)(g) of the Crimes Act 1914 (Cth) (the Act). [7] The relevant consideration is the fact of the guilty plea. [8] Section 16A(2)(g) neither requires nor prohibits the specification of any discount. Although it is desirable in the interests of transparency that such discounts be specified, a failure to do so will not, of itself, constitute error. [9]
As I have noted, the Crown expressly conceded that in light of the decision in Xiao, the sentencing judge in the present case had erred in failing to have regard to the utilitarian value of the applicant's plea of guilty, and that the ground of appeal was made out.
In these circumstances, it is necessary for this Court to resentence the applicant in the exercise of its independent sentencing discretion. For that purpose, the applicant read his affidavit of 20 April 2020, as well as an affidavit of his solicitor, Stephen Eccleshall, of 22 April 2020.
[10]
Submissions of the applicant
Counsel for the applicant submitted that in circumstances where it was agreed that the applicant's plea of guilty had been entered at the first available opportunity, a discount of 25% to reflect the utilitarian value of that plea was warranted. Counsel further submitted that an additional discount was warranted in order to reflect the applicant's assistance to authorities and, in particular, to reflect the fact that he had volunteered to the police the names of the two other persons who were involved in the importation. Counsel for the applicant emphasised that this information was provided spontaneously by the applicant, and not in the hope of, or even knowledge of the potential availability of, any discount.
Counsel also pointed to the affidavit evidence relied upon by the applicant. It was submitted that on the basis of such evidence, this Court would reach a favourable conclusion regarding the applicant's prospects of rehabilitation.
[11]
Submissions of the Crown
The Crown accepted that the applicant had co-operated with the authorities but submitted that such co-operation was "very limited". The Crown also pointed out that the only evidence before the Court was what the applicant had told police and that there was no evidence before the Court as to the utility of the information which he had provided. At the same time, the Crown accepted that what the applicant told police may well have been the entirety of the information within his knowledge.
In oral argument, the Crown conceded that it was open to this Court to apply a discount to reflect the applicant's assistance to police, over and above any discount applied to reflect the utilitarian value of the plea of guilty. [10] The Crown also conceded that taking all factors into account, a "marginally lesser sentence" than that imposed by the sentencing judge was warranted. [11]
[12]
CONSIDERATION
The appropriate sentence is to be determined, at least in part, by reference to s 16A of the Act which is in the following terms:
16A Matters to which court to have regard when passing sentence etc.--federal offences
(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
(b) other offences (if any) that are required or permitted to be taken into account;
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character--that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence--any victim impact statement for the victim;
(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(fa) the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii) any obligation under a law of the Commonwealth; or
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;
about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g) if the person has pleaded guilty to the charge in respect of the offence--that fact;
(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
(j) the deterrent effect that any sentence or order under consideration may have on the person;
(ja) the deterrent effect that any sentence or order under consideration may have on other persons;
(k) the need to ensure that the person is adequately punished for the offence;
(m) the character, antecedents, age, means and physical or mental condition of the person;
(n) the prospect of rehabilitation of the person;
(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.
…
[13]
Section 16A(2)(a) - The nature and circumstances of the offence
[14]
Section 16A(2)(k) - The need for adequate punishment
The circumstances of the applicant's offending have previously been set out. [12] In assessing the nature and circumstances of that offending, it is necessary to centre upon what the applicant actually did. Adopting a "label" to describe his place in a notional hierarchy is not appropriate. [13]
The applicant imported a significant quantity of a prohibited drug into Australia. In doing so, he performed an obviously important function, without which the importation could not have been effected. It is evident from the method of concealment that the applicant engaged in considerable preparation and planning in an attempt to ensure that the presence of the drug would not be detected. That degree of planning is also reflected in the documentary material found at the time of his arrest.
The applicant told police that he had been "pressured" by others to commit the offence. However, he expressly conceded that he was not forced to do so, and had decided to commit the offence because of a promise of financial reward. Although duress which falls short of a defence can mitigate penalty, [14] what was described by the applicant to police does not rise to the level necessary to constitute a mitigating factor.
The weight of the drug is also a relevant consideration. [15] The pure weight in the present case was 60.5g, in circumstances where the marketable quantity is 2.0g. [16] The amount of the drug imported is therefore 30 times the marketable quantity which, on any view, is substantial.
It follows from all of these matters that the offending was serious and that a full-time custodial sentence is the only available sentencing option.
[15]
Section 16A(2)(f) - Contrition
A handwritten letter from the applicant is in the following terms: [17]
Your Honor!!
For me drugs have been always a means to feel normal, to be active and focused, sometimes recreational. I never participated in a street-scene. In my 10 months in jail here, I have encountered another side of drugs, a world full of violence and people acting completely out of their minds believing this was justified just because they are "on something".
Violence in special is something I want no part in whatsoever and I am shocked and horrified of what I see and hear and what seems to be normal.
I honestly now regret to have brought drugs to Australia and hereby want to apologise for having done so.
Respectfully yours
Helmut Weber
Long Bay Prison
The practice of an offender providing a written statement of this kind to a sentencing judge, without being cross-examined on its contents, has been the subject of criticism. [18] In circumstances where the expressions of remorse by the applicant in that document are untested, I place little weight on its contents.
[16]
Section 16A(2)(h) - Co-operation
There is no dispute that the applicant pleaded guilty at the first available opportunity. The plea is some evidence of remorse, and of an acceptance of responsibility. A discount of 25% should be allowed to reflect the utilitarian value of the plea.
The nature and extent of the applicant's co-operation with police has already been set out. [19] In my view, naming others who were involved in the importation, one of whom had actually provided the quantity of drug which was the subject of the importation, was significant. Moreover, as counsel for the applicant pointed out, the information was provided spontaneously. There is no suggestion that in deciding to assist the police in that way, the applicant was motivated by a desire to secure a discount. Indeed, there is no indication that the applicant even knew that a discount may be available to him at some later stage.
The Crown pointed out that there was no evidence before the Court as to whether the information provided by the applicant to police was of any use. Whilst that is clearly true, it must be emphasised that s 16A(2)(h) of the Act simply mandates that the Court take into account "the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences". In that respect, s 16A(2)(h) may be contrasted with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which mandates that when exercising the power to reduce penalties on account of assistance rendered by a State offender, the Court must have regard to the significance and usefulness of the assistance provided. [20]
If a federal offender has co-operated with authorities, he or she is entitled, by virtue of s 16A(2)(h) of the Act, to have that factor taken into account on sentence. There is no fixed tariff to be applied. The usefulness of the co-operation provided will obviously be relevant in considering the nature and extent of the co-operation, and in assessing the quantum of any discount which is to be applied. The absence of evidence establishing the usefulness of the co-operation does not lead to a conclusion that there should be no discount at all, although in such circumstances the discount may be less than would otherwise be the case. [21]
Further, as conceded by the Crown before this Court, the scheme of s 16A(2) is such that the plea of guilty, and an offender's co-operation with authorities, are separate and distinct considerations on sentence. The correctness of that approach was recognised by this Court in Valsamakis v R [22] where the application of a separate discount of 5% to reflect the offender's past assistance was regarded as appropriate.
In all of these circumstances, I would allow a discount of 5% to reflect the applicant's co-operation with authorities. It follows that the total discount to be applied is one of 30%.
[17]
Section 16A(2)(ja) - Deterrence
General deterrence assumes considerable significance in matters of this nature, [23] and the seriousness of the offending is such that stern punishment will be warranted in almost every case. In my view, given the circumstances which led to the applicant's offending, any sentence must also reflect a need for personal deterrence.
[18]
Section 16A(2)(m) - Character, antecedents, background and mental condition
A report of Ms Isabel Talmacs, Forensic Psychologist, dated 18 December 2015, records a number of aspects of the applicant's background.
The applicant is now 59 years of age. He was born in Bavaria, where he spent the first 21 years of his life. [24] He has had a variety of forms of employment, and has undertaken several business ventures, some of which have been less than successful. He has also undertaken studies in sociology and psychology. [25] He has a history of drug offending and is recorded as having the following convictions: [26]
1. On 13 January 1999, he was sentenced by the District Court in Bamberg, Germany to 3 years and 3 months' imprisonment for drug trafficking in significant quantities (on a basis akin to a "deemed supply" charge contrary to the Drug Misuse and Trafficking Act 1985 (NSW)). He served nine months as a remand prisoner and spent a period of 14 months in a drug rehabilitation facility, following which he was on probation for 5 years.
2. On 9 December 2009 he was sentenced by the District Court in Bayreuth to 3 years' imprisonment for the possession of drugs in significant quantities. He served a sentence of 12 months in prison and then spent 6 months in rehabilitation. He was thereafter placed on probation, the period of which formed part of the 5 year period in (i) above.
3. On 23 April 2014 he was sentenced by the Local Court in Berlin-Tiergarten to a total fine of €1500.00 for the illicit production of drugs in two cases. The applicant did not pay the fine and did not maintain contact with his probation officer and on 18 December 2014 a warrant for his arrest was issued from the Berlin Regional Court.
The applicant's criminal history disentitles him to leniency.
Ms Talmacs reported that the applicant met the diagnostic threshold for psychological dependence/compulsive use of methamphetamine, which he nominated as being his main substance of abuse at the time of the offending. [27] She also reported that the applicant's responses to a test for Post Traumatic Stress Disorder were just below the threshold for a full diagnosis, but indicated that the applicant was suffering from the long-term effects of trauma. [28] She concluded that the applicant demonstrated traits consistent with autism and would benefit from a referral for specialist diagnosis. [29] She also concluded that test scores returned by the applicant were consistent with factors of major depression. [30] However, no definitive diagnoses of any mental health disorder were recorded.
[19]
Section 16A(2)(n) - Prospects of rehabilitation
In terms of the applicant's rehabilitation, Ms Talmacs reported that he scored in the low range for overall risk of re-offending, and that his scores highlighted only one area for intervention in order to help prevent recidivism, namely drug and alcohol abuse. [31] She considered that it may be helpful for the applicant to take part in counselling to assist in managing substance abuse issues, and develop alternative methods for managing mood stress. In this regard, she said: [32]
[62] [The applicant] reported a history of amphetamine use from 1994. He said these substances have previously helped lift his depression. Given his scores on the ASRS, referral to a psychiatrist to investigate ongoing medication options would likely be helpful, together with ongoing counselling, as his symptoms are likely a combination of difficulties relating to others, along with trouble controlling impulsive behaviour and maintaining a stable mood, thus specialist investigation is likely needed to identify the correct medication.
…
[66] It is recommended that [the applicant] receive support to develop his resilience to low mood states, in the form of referral to a psychiatrist to review medication options, and supportive counselling to help resolve interpersonal difficulties. Given his test scores and personal history it appears he suffers from symptoms of PTSD and ADHD, both [sic] which make suppressing impulsive actions difficult and may have contributed to his drug use and criminal involvement. … With appropriate support to resolve these emotional difficulties his prospects of rehabilitation should be excellent.
In his affidavit of 20 April 2020, the applicant said that since being taken into custody, he has been housed at various facilities, at most of which he has been employed. [33] Whilst he has undertaken some courses whilst in custody, [34] it is evident that the availability of such courses has been limited by virtue of his immigration status. Generally speaking, the affidavit material tends to establish that the applicant has used his time in custody productively, and has been of good behaviour.
The opinions of Ms Talmacs are generally consistent with the affidavit material. However, the applicant is yet to successfully address the issue of his drug use. Doing so is fundamental to his successful rehabilitation. In light of his history in that regard, his prospects of rehabilitation must remain guarded at this point.
[20]
CONCLUSION
I propose the following orders:
1. The time in which to bring an application for leave to appeal against sentence is extended.
2. Leave to appeal against sentence is granted.
3. The appeal against sentence is allowed.
4. The sentence imposed on the applicant in the District Court of NSW is quashed.
5. In lieu thereof, the applicant is sentenced to imprisonment for a period of 7 years and 5 months to date from 13 June 2015 and to expire on 12 November 2022, with a non-parole period of 5 years and 2 months to date from 13 June 2015 and to expire on 12 August 2020.
[21]
Endnotes
RPS v R (2000) 199 CLR 620; [2000] HCA 3 at [29].
ROS 4-6.
ROS 7-8.
ROS 9.
ROS 12.
(2018) 96 NSWLR 1; [2018] NSWCCA 4.
Xiao at [269]-[274]; [278].
Xiao at [269]; [271]-[272].
Xiao at [280].
T6.40-T6.44.
Crown written submissions at [40].
Commencing at [39] above.
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215.
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64].
Criminal Code Regulations 2019 (Cth) Schedule 2.
The content of this document is set out in the terms in which it was written.
See for example R v Elfar [2003] NSWCCA 358 at [25]; Pfitzner v R [2010] NSWCCA 314 at [33].
See R v Cartwright (1989) 17 NSWLR 243 at 253 per Hunt J (as his Honour then was) and Badgery-Parker J; Yenice v R (1994) 72 A Crim R 234 at 239 per Hunt CJ at CL, Dunford and Blanch JJ agreeing; R v Barrientos [1999] NSWCCA 1 at [41]-[50] per Abadee J (Sheller JA agreeing) .
[2016] NSWCCA 156 at [53].
Wong v The Queen; Leung v The Queen at [64]; see also R v Benais [1999] NSWCCA 236 at [28]; R v Riddell (2009) 194 A Crim R 524; [2009] NSWCCA 96 at [55]-[58].
At [8].
At [11]-[15].
Statement of Facts at [19].
At [35].
At [39].
At [38].
At [61].
At [49].
At [62]; [66].
At [6]-[9]; [20].
At [9].
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Decision last updated: 27 May 2020