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[2026] NSWCCA 4
Court of Criminal Appeal (NSW)
2026-02-06
Ward P at [1], Adamson JA at [2], R A Hulme AJ at [3].
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Wonj v R [2026] NSWCCA 4
Hearing dates: 12 December 2025
Date of orders: 6 February 2026
Decision date: 06 February 2026
Before: Ward P at [1];
Adamson JA at [2];
R A Hulme AJ at [3].
Decision: (1) Leave to appeal against sentence granted.
(2) Appeal dismissed.
Catchwords: CRIME – Appeal against sentence – supply large commercial quantity of prohibited drugs – partly motivated by drug and gambling addictions – diagnoses of substance use disorder and gambling disorder – mental health found not to be “causally connected to the offences in the relevant sense” – infelicity – drug and gambling addictions might provide an explanation for offending but do not operate in a mitigatory sense
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2)
Crimes Act 1900 (NSW) ss 193B(2), 193BA(3)
Cases Cited: Aslan v R [2014] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Johnston v R [2017] NSWCCA 53
Lane v R [2025] NSWCCA 113
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Jafari [2017] NSWCCA 152
RG v R [2025] NSWCCA 36
Singh v R [2019] NSWCCA 110; (2019) 278 A Crim R 103
Category: Principal judgment
Parties: Ryee Saea Wonj (Applicant)
Rex (Respondent)
Representation: Counsel:
T F Woods / A Burkitt (Applicant)
M Millward (Respondent)
Solicitors:
KPT Defence Lawyers
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/00322920
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
Ryee Saea Wonj, sought leave to appeal against an aggregate sentence of imprisonment for 8 years with a non-parole period of 6 years for two offences contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) of supplying a large commercial quantity of prohibited drugs (methylamphetamine and heroin). Buscombe DCJ applied a 25% discount for the applicant’s early pleas of guilty, and, at his request, took into account four other offences on a Form 1 which involved possession of other drugs and dealing with proceeds of crime in the form of cash and luxury goods.
In assessing the objective seriousness of the offences, the Judge accepted the applicant was partly motivated to offend in order to fund his addictions. He declined to find a reduction in moral culpability or that less weight should be given to general deterrence on the basis that the applicant’s diagnosed substance use disorder and gambling disorder “does not … result in a conclusion that [the applicant’s] mental health was causally connected to the offences in the relevant sense”. The applicant sought to rely on this in support of a single ground of appeal, namely, the sentencing judge erred by failing to apply the correct threshold for taking into account the state of an offender’s mental health in mitigation, that being that the condition had a material contribution to the offending as opposed to being “causally connected”. Thus, the applicant contended there was an erroneous application of the principle in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
The Court (R A Hulme AJ, Ward P and Adamson JA agreeing) granting leave but dismissing the appeal held:
The applicant’s drug and gambling addictions were not causally connected to the offences in a mitigatory sense. It was in accordance with sentencing principles that the drug and gambling addictions that arose in the applicant’s life when he was not disempowered, or inhibited, in exercising real choice might provide an explanation for the offending but did not operate to mitigate the sentence to be imposed. The applicant had the benefit of a finding of objective seriousness which eschewed the Crown’s contention that the offending was solely motivated by greed: [52]-[64] (R A Hulme AJ).
R v Henry (1999) 46 NSWLR 346; (1999) NSWCCA 111 considered, RG v R [2025] NSWCCA 36; Lane v R [2025] NSWCCA 113 cited.
WARD P: I agree with R A Hulme AJ.
ADAMSON JA: I agree with R A Hulme AJ.
R A HULME AJ: Ryee Saea Wonj applied for leave to appeal against an aggregate sentence imposed by his Honour Judge Buscombe in the District Court at Sydney on 4 October 2024.
For two offences contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) of supplying a large commercial quantity of a prohibited drug (6,896.8g of methylamphetamine and 1,320.6g of heroin), and taking into account at the applicant’s request a further four offences on a Form 1, the applicant was sentenced to imprisonment for 8 years with a non-parole period of 6 years.
The indicative sentences for each offence were reduced by 25% for the applicant’s early pleas of guilty. The details were as follows.
| Sequence | Offence | Max. & SNPP | Indicative sentence | | Seq 1 | Supply large commercial quantity of a prohibited drug (6,896.8g methylamphetamine) | Life imprisonment SNPP: 15 years | 6 years (starting point 8 years) NPP 4.5 years | | Form 1 attached to Seq 1 | Seq 6: Knowingly deal with proceeds of crime ($22,015 cash) s 193B(2), Crimes Act 1900 (NSW) | 15 years | | Seq 8: Possess prohibited drug (4.3g cannabis) s 10(1), DM&T Act | 2 years | | Seq 9: Possess prohibited drug (1.7g cocaine) s 10(1), DM&T Act | 2 years | | Seq 13: Recklessly deal with proceeds of general crime of value >$100,000 (luxury watches, jewellery, and designer bags) s 193BA(3), Crimes Act | 10 years | | Seq 2 | Supply large commercial quantity of a prohibited drug (1,320.6g heroin) | Life imprisonment SNPP: 15 years | 4.5 years (starting point 6 years) NPP 3 years and 4 months |
The methylamphetamine was more than 13 times the large commercial quantity threshold for that drug (500g) and the heroin was 320.6g over its threshold (1kg).
The applicant sought leave to appeal on the following ground:
The sentencing judge erred by failing to apply the correct threshold for taking into account the state of an offender’s mental health in mitigation.
The offences were described in a statement of agreed facts which the applicant signed.
In May 2022, a company of which he was the sole shareholder and director purchased a storage unit for $282,611.76. He used it to store various personal belongings and valuable items, including motor vehicles.
Police commenced surveillance on the applicant in September 2022. CCTV footage and swipe card logs revealed he attended the storage unit on nine occasions from 11 to 26 October 2022. He was always alone except on 18 October 2022 when an unknown woman accompanied him. She did not put anything into or take anything out of the unit. On 14 October 2022, the applicant placed in the unit a cardboard box containing drugs subsequently seized by the police.
Search warrants were executed on 28 October 2022 at the unit and the applicant’s home. Police seized the abovementioned cardboard box at the unit. It contained packages comprising:
3,662.89g of methylamphetamine
1,320.60g of heroin
1.7g of cocaine
4.3g of cannabis
Secreted behind wooden panelling within the frame of a mezzanine shelving structure were jewellery, designer bags, and luxury watches. Their total value was about $330,000.
At the applicant’s home police seized further methylamphetamine in several containers. It was in the form of either a powder or a crystallised substance in varying stages of drying, the total being 3,233.91 grams. The total quantity of methylamphetamine found at both the applicant’s home and in the storage unit was 6,986.8g. Also seized was $22,015 in cash.
The applicant’s phone contained stored data which included:
[N]umerous images of white crystals and white crystallised substances in a semi-dried form. There were also images of white powder, white powders being weighed in small clear bags on scales, and white powder and/or crystal substances having been packaged in smaller plastic bags.
The images had been created on 39 dates between 29 July 2021 and 17 October 2022. There were also images of large quantities of cash in the form of $50 and $100 notes created on 6 January 2022 and 17 August 2022.
A transcript of an interview with police on 22 November 2022 was annexed to the statement of agreed facts and included the applicant asserting the following:
He sometimes worked, helping out in a friend’s bubble tea shop for which he was paid $500-700 per week. He had no other source of income.
He had been sharing a rented apartment, but the co-occupant had recently moved out. Since then, the applicant had been paying the entire rent of $700 per week.
He did not pay for the storage unit which he acquired less than a year ago.
He was shown a still image of the cardboard box which contained the drugs found in the storage unit. He did not remember it and did not know what was in it. Upon being told of the large quantities of drugs found in the box he said he did not know what they were; he had never seen it or touched it before.
There were three keys to the storage unit, but he declined to say who else had keys. He also declined to say anything about the jewellery, bags and watches police had found.
The applicant did not give evidence at the sentencing hearing but relied upon a report by Dr Richard Furst, forensic psychiatrist. Much of the following derives from the history Dr Furst recorded.
The applicant was born in Vietnam in April 1961 and was aged 61 at the time of the offending. When he was 14, his parents sent him away in a boat shortly after the fall of Saigon. After travelling to Indonesia and Singapore, he arrived in Australia as a refugee in August 1975.
The applicant has a criminal history which includes offences of using a false instrument for which in 2008 he was ordered to perform community service work and placed on a good behaviour bond. It was a condition of the bond that the applicant:
[O]bey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and undergo gambling counselling. (Emphasis added)
In 2015 the applicant was sentenced to imprisonment for an aggregate term of 10 years with a non-parole period of 6 years for two offences of supplying a prohibited drug and a serious firearms dealing offence. The sentencing judge in the present matter noted the applicant was serving the parole period of that sentence at the time of committing the index offences which he understandably regarded as an aggravating factor.
The applicant told Dr Furst he was exposed to war-related trauma at a young age. He also said he was a victim of sexual abuse by a teacher at Oxley State High School which led to him leaving school altogether at the age of 16. He said he had disclosed the abuse to his ex-wife and a psychologist at a drug and alcohol rehabilitation centre (Connect Global Ltd) which he attended whilst on bail from August 2023 to April 2024.
The history included that the applicant returned to Vietnam in 2006 and saw his family. After his return to Australia in 2007, he commenced a relationship with a woman who was abusing drugs, and he began using drugs as well. Dr Furst referred to the conditions of the bond imposed in 2008 which he regarded as confirming the applicant’s lengthy history of addiction issues. The applicant told him he was using “ice” in 2009 and his drug use continued as a regular habit, together with excessive drinking and gambling, until his arrest in March 2013 on the drug supply (and firearms) charges.
The applicant’s gambling history went back to the 1990s. He ceased gambling for a couple of years after attending Gamblers Anonymous in the mid-1990s but resumed gambling compulsively and excessively in the late 1990s, 2000s and 2010s.
The applicant said he relapsed in relation to drug use and gambling after his release on parole in 2019. He was using about 3.5g of “ice” per day and “spending up to thousands of dollars in a day on the horses and/or at the Crown Casino”.
In relation to the offences, the applicant told Dr Furst he was a “warehouser”. He said, “I was looking after these people. They pay me. They put it [the drugs] in there. They collect it.” He claimed that “different people would come to collect the drugs in different cars”. (This account is not supported by the agreed facts.)
Dr Furst found no indications of any major mental illness but diagnosed the applicant as having a substance use disorder and gambling disorder on the basis of his long-standing history of drug abuse/addiction and pathological gambling. (How these conditions may relate to the offending is at the heart of the proposed ground of appeal.)
In the event that he found there was a mental illness or condition, Dr Furst was asked to advise whether there was any nexus with the offending behaviour and, if so, whether it “materially contributed to the offences”. He answered:
Mr Wonj reported using large amounts of ice and gambling on a regular basis excessively between his release on parole in 2019 and his arrest in November 2022. His addiction to methylamphetamines and his pathological gambling brought him into contact with his co-offenders and was a clear motivation for his participation in the offending i.e. raising money to gamble and raising money to fund his drug addiction. His addiction and gambling are both strongly correlated with earlier experiences of trauma and loss in Vietnam and sexual abuse victimisation at high school in Brisbane, as outlined above, mitigating to some degree against the seriousness of his offending actions.
The methylamphetamine found at the offender’s home was found in various containers and in different forms. The white powder and crystallised form of the substance was found in various stages of drying and preparation. The state and form of the drugs found in the offender’s home supports the finding, beyond reasonable doubt, that he was not simply storing drugs, but was actively involved in preparing them for supply.
Similarly, the location of the $22,000 in cash at his home, the photographs found on his phone of the state of preparation of the drugs, the drugs being weighed on scales, and of currency, together with the valuable items secreted in the storage unit, satisfies me beyond reasonable doubt that the offender was in the business of selling prohibited drugs and that the drugs that are the subject [of] the charges constitute the stock of drugs that he was to sell. I note, in that regard, in his police interview that is before me, the offender detailed he had a very limited income from helping a friend in his bubble tea shop.
I do not propose to sentence the offender on the limited role he described to Dr Furst, as it is inconsistent, in my view, with the objective matters referred to in the agreed facts.
The offender engaged in the offences for financial gain. The subjective material before me supports a finding that he did so, at least in part, to fund his drug and gambling addictions. His role involved storing the drugs and getting them ready for sale. He was involved in a business of selling prohibited drugs; although I am not able to be satisfied beyond reasonable doubt whether he was involved on his own in that business. (Emphasis added)
Almost immediately after discussing these matters, his Honour announced his assessment of the objective seriousness of the offences as “below the middle of the range”. It is reasonable to infer his Honour may have assessed the offending at a higher level if the applicant was engaged in the offences entirely for profit and not partly to fund his addictions. Mr Woods, counsel for the applicant in this Court, implicitly accepted this, in that he embraced the judge’s finding as correct and contrasted it to the submission that had been made by the Crown that the applicant was solely motivated by greed.
In addition to being sceptical about the applicant’s account to Dr Furst about his role in the offences (above at [31]), his Honour said in relation to the claim of sexual abuse, “it is difficult to put a great deal of weight on the offender’s assertion of sexual abuse when in high school”. He noted there was no mention of this in the remarks on sentence of Hock DCJ who sentenced him in 2015. Further, her Honour had said he attended high school until the age of 17 (not 16). There was also no confirmation in a report from the CEO of Connect Global Ltd of the applicant having disclosed this during his time at that facility.
A letter from a firm of solicitors in Queensland referred to the applicant having telephoned them on 28 August 2024, three weeks before the sentence hearing, to discuss his legal options in relation to abuse by a teacher at Oxley State High School between 1976 and 1977. The judge said:
All of the evidence indicates this claim only arose in the lead-up to sentence, although I accept that often claims of child sexual abuse come forward many years after the abuse has occurred.
The judge accepted the applicant’s account to Dr Furst of having commenced using illicit drugs in 2008, after having commenced a relationship with a person who was abusing drugs. He also accepted the history of problematic gambling from at least the time the applicant attended Gamblers Anonymous in the mid-1990s.
His Honour said the following about Dr Furst’s opinions (see above at [28]-[29]):
Dr Furst opined that the offender meets the criteria for the diagnosis of substance use disorder and gambling disorder. Dr Furst expressed the opinion that the offender’s addiction to illicit substances and his pathological gambling are strongly correlated with earlier experiences of trauma and loss in Vietnam, and sexual abuse victimisation when he was in high school. I do not accept Dr Furst’s opinion that it was the offender’s addictions that brought “him into contact with his co-offenders” as I do not accept that there were co-offenders of the offender for the reasons I gave earlier.
Dr Furst did not embrace the suggestion that the offender’s mental condition would mean that a custodial sentence would weigh more heavily on him, and stated that drug addiction is common amongst the average inmate, and the offender does not have a major mental illness such as schizophrenia or bipolar disorder.
On the evidence, the offender’s motivation to engage in the offending was at least in part to fund his drug and gambling addictions. While those addictions appear to lie behind the [commission] of the offences, I do not consider the principles in DPP (Cth) v De La Rosa (2020) 79 NSWLR 1 have any part to play here. The fact that someone in their 60’s, who has had a number of opportunities to engage in rehabilitation, continues to commit serious drug supply offending to fund their drug and gambling habits, is not a mitigating factor on sentence. It does not, in my opinion, result in a conclusion that his mental health was causally connected to the offences in the relevant sense, nor does it lessen the need to reflect the principle of general deterrence when imposing sentence. (Emphasis added)
The applicant’s submissions raised issues as to the relevance of his substance use disorder and gambling disorder to his moral culpability and the emphasis to be given to general deterrence in sentencing. They also raised a question as to the relevance of such disorders in mitigation of sentences more generally.
In the famous passage in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], McClellan CJ at CL said (with citations of authorities omitted):
Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: … They can be summarised in the following manner:
● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence … ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed … ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced … ● It may reduce or eliminate the significance of specific deterrence … ● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence … Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public … (Emphasis added)
What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.
[184] In Douglas (1995) 56 FCR 465 the Full Court of the Federal Court heard an appeal from the Supreme Court for the Australian Capital Territory. In a joint judgment, Von Doussa, Higgins and R D Nicholson JJ said (at 470):
“It is, of course, not a mitigating factor that a person commits a crime to feed a drug addiction. However, that is not a principle of universal application. As Jenkinson J noted, at 105, in Talbot (1992) 34 FCR 100, the moral and legal fault for the acquisition of the addiction has to be considered:
‘… evaluation of moral culpability remains in my opinion as fundamental to one system of punishment for crime as evaluation of the degree of harm caused or threatened by the criminal act or actor.’
The age of the offender when he or she becomes addicted and the degree of judgment open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct.”
[185] Douglas involved an addiction that commenced at age eight and was total by age 13. This is an extreme case of little assistance in establishing a general principle that addiction lessens moral culpability. On the contrary, it affirms that self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice. That was the very distinction made by the Full Court in Talbot (1992) 34 FCR 100 at 105-106.
…
[196] It was submitted that the degree of moral culpability of a particular offender is diminished by addiction. Evidence was put before the Court that there is, at least in some cases, a genetic predisposition to addiction and that addiction generally is not simply a state of mind but has a neurobiological or physiological base. It was put that an addict’s decision to perform a criminal act was not “a completely free choice”.
[197] In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.
[198] First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences.
[199] Secondly, the submissions in this Court were in error in identifying the relevant conduct as the craving associated with withdrawal. The material presented to the Court did not suggest that the choice faced by addicts was between this negative feeling and the need for money to allay it. Rather the choice may often be the desire for the positive feeling said to be associated with a drug induced euphoria. The desire to bring about that state of “well-being” is, relevantly, a moral choice.
[200] Thirdly, nothing in either the process of addiction or its neuro-biological and physiological basis, leads ineluctably to the commission of crime, let alone the commission of crimes of violence against persons, such as armed robbery. Not all persons who suffer from addiction behave in this way. Those that do so, make a choice.
[201] Finally, individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice.
[202] There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money.
(Emphasis added)
[273] In my view the relevant principles are as follows:
(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;
(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
(i) the impulsivity of the offence and the extent of any planning for it; (cf Bouchard (1996) 84 A Crim R 499 at 501-2); and Nolan (1988) VSCA 135 (2 December 1998);
(ii) the existence or non existence of any alternative reason that may have operated in aggravation of the offence, eg that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;
(iii) the state of mind or capacity of the offender to exercise judgment, eg if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;
(c) It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:
(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword (eg Lewis Court of Criminal Appeal New South Wales 1 July 1992);
(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf Hodge Court of Criminal Appeal New South Wales 2 November 1993; and Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;
(iii) justify special consideration in the case of offenders judged to be at the “cross roads”: Osenkowski (1982) 5 A Crim R 394.
[274] To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case.
[275] The legislature has, by the heavy maximum penalty prescribed for armed robbery, spoken clearly in relation to this offence. Drug dependent persons should not be encouraged, as a class, to think that they are free to engage in serious criminal conduct of whatever kind with impunity, or with any hope of favourable treatment because they are able to show that they needed money through their addiction.
While R v Henry was focussed upon the crime of armed robbery and an addiction in relation to drugs, the principles apply more broadly. For example, in Johnston v R [2017] NSWCCA 53, Bathurst CJ (at [41]) found the above extract from the judgment of Wood CJ at CL and other authorities to which he referred applied equally to cases of fraud to feed a gambling addiction.
Singh v R [2019] NSWCCA 110; (2019) 278 A Crim R 103 provides an illustration of the application of the principles. In that case the applicant was sentenced for an offence of aggravated break and enter and commit robbery in company. He was diagnosed (coincidentally by Dr Furst) with substance use disorder and severe gambling disorder. It was contended in one of the grounds of appeal that the sentencing judge erred in not taking those disorders into account as mitigating factors. It was submitted that the judge should have considered if moral culpability was reduced and whether the need for general deterrence was reduced because the applicant’s capacity to exercise judgment was impaired. The judge had said the applicant needed to address his gambling addiction and drug usage if he was to resist committing further offences, thus indicating a finding that a nexus existed between the disorders and the offending.
In response, Payne JA referred at [43] to DPP (Cth) v De La Rosa at [177] as setting out the ways in which an offender’s adverse mental condition may be relevant to the assessment of sentence. Then, after reference to Aslan v R, Johnston v R, and R v Jafar**i [2017] NSWCCA 152, he said:
In this case, the sentencing judge considered the question of whether there was a causal connection between the applicant’s gambling disorder and his offending. The evidence established that the applicant was motivated by his gambling addiction to commit the offence. It was open to the sentencing judge to find that the gambling addiction was an explanation for the conduct but not a mitigating factor. A causal connection between the disorder and the offence had not been established on the balance of probabilities. There was no error in this case in her Honour failing to find that the offence was not one which provided an appropriate vehicle for general deterrence or retribution, to the full extent that such an offence might otherwise call for such a response.
Submissions
Counsel for the applicant in this Court referred to the sentencing judge having twice said that the applicant’s motivation to engage in the offending was at least in part to fund his drug and gambling addictions (see above at [32] and [38]). In the latter passage, his Honour accepted that the addictions “appeared to lie behind the commission of the offences”. Mr Woods contended this amounted to an acceptance that the disorders diagnosed by Dr Furst contributed to the offences in a material way which was the threshold stated by McClellan CJ at CL for the various principles he referred to in DPP (Cth) v De La Rosa. Referring to a “causal connection”, as the sentencing judge did in this case, unnecessarily and unduly elevated the threshold that an offender must meet before the principles may be applied: RG v R [2025] NSWCCA 36 at [74]-[77] (Yehia J); Lane v R [2025] NSWCCA 113 at [108]-[112] (Ierace J).
Counsel for the applicant conceded in oral submissions that the case was put on the basis that it was the bare fact of the applicant having the diagnoses of substance use and gambling disorders that was relied upon. No case was sought to be made that these disorders had any particular effect upon the applicant such as, for example, that he was rendered less in control of his cognitive facilities or emotional restraints, or lacked the ability to make reasoned or ordered judgments, or had a limited appreciation of the wrongfulness of his offending conduct, or of its moral culpability. (Those are matters derived from the judgment of Wood CJ at CL in R v Henry at [254] which were referred to as the types of reasons general deterrence may be given less weight in the case of an offender with a mental abnormality).
Counsel for the applicant submitted at the hearing that there was a “disconnect between his Honour’s finding about motive and the mental disorders playing a role in the commission of the offences and rejection of De La Rosa”.
In written submissions in reply to those of the Crown, counsel for the applicant had sought to take the case beyond what the evidence was capable of supporting. He referred to cases which the Crown relied upon in support of a contention that addiction is “not, of itself, a mitigating circumstance” and that the applicant’s case falls within that general rule. The cases the Crown relied upon included R v Henry and Singh v R. Counsel for the applicant responded:
[T]hose authorities do not stand for the proposition that a diagnosed substance use disorder or gambling disorder, which is found to motivate the offending, can never be mitigating. Rather they caution against treating mere self-indulgent use of drugs, without more, as reducing culpability. De La Rosa and subsequent decisions (including DS v R (2022) 109 NSWLR 82 and Moiler v R [2021] NSWCCA 73) make clear that where an offender suffers from a mental condition (including a disorder related to addiction) that impairs judgment, increases vulnerability, entrenches compulsive behaviour or otherwise materially contributes to the offending, it may reduce moral culpability and the weight to [be given to] general and specific deterrence.
In other words, there is a distinction between an offender who simply chooses to take drugs or gamble and then offends for financial gain; and an offender who offends while suffering from a recognised mental disorder characterised by compulsion, impairs control and entrenched maladaptive behaviour, which is found to have motivated the offending.
…
[I]t is not open simply to characterise the offending as driven by greed or to treat the addictions as no more than an explanation without mitigatory content. The disorders go to the applicant’s capacity for rational choice and self-control in the relevant period, matters squarely within the De La Rosa framework.
The submissions in reply are relevant only to the extent that they highlight what the applicant’s case was not. The applicant’s case was confined in his primary written submissions, and accepted in oral submissions, to be that the bare fact of drug and gambling addictions should have been found to have materially contributed to the commission of the offences and thereby gave rise to a need to consider the application of the principles in DPP (Cth) v De La Rosa.
There is a very good reason for the applicant’s case not being as it was sought to characterise it in the written submissions in reply, namely that there was nothing in the report of Dr Furst, or elsewhere in the evidence before the sentencing judge, that supported it. For example, there was nothing that suggested the applicant was at an increased level of vulnerability, or his judgment, capacity for rational choice and self-control were impaired.
The bare statement by Dr Furst that there was “a strong correlation between childhood trauma, including being sexually abused and other traumatic events witnessed as a child, and the subsequent onset of drug addiction, drinking and or gambling”, was, as the Crown submitted, an ipse dixit and ignored the applicant’s own account of when and in what circumstances he had first used prohibited drugs. The first mention of gambling as an issue in the applicant’s life was when he was in his 30’s and drug use commenced when he was aged 47. Moreover, not all of the history based on the applicant’s self-report was accepted by the sentencing judge.
There was no evidence that would have supported a proposition that the applicant’s case fell within the principle referred to by Wood CJ at CL in R v Henry at [273](c)(ii), namely that his addictions were not a matter of personal choice but were attributable to something for which he was not primarily responsible.
The applicant did obtain a benefit of a finding of a kind described by Wood CJ at CL in [273](b)(ii), that is that the addictions “at least in part” constituted his motivation to engage in the offending and thereby “in part” refuted the Crown’s contention that he was entirely motivated by greed. This was a finding in his favour that fed into the assessment of the objective seriousness of the offences (see above at [33]).
The Crown submitted and I accept that the applicant misconstrued what the sentencing judge meant by his reference to the applicant’s mental health not being “causally connected to the offences in the relevant sense”. If his Honour meant to say that the principles in DPP (Cth) v De La Rosa had no part to play because there was no causal connection between the applicant’s mental health and the commission of the offences, he could be expected to have said so without adding the words, “in the relevant sense”.
There is an element of infelicity in what his Honour said. However, it is clear enough from the balance of the sentence that his Honour did not perceive the establishment of a causal connection as the threshold test of when a mental condition may have the consequences described by McClellan CJ at CL. If he did, there was no need for him to make and explain a decision that there would be no lessening of “the need to reflect the principle of general deterrence when imposing sentence”.
Accordingly, there was no error in the application of principle. I am satisfied that his Honour dealt with the issue in complete accordance with the principles to which I have referred. Apart from having regard to the motivation for the offending in the context of assessing the objective seriousness of the offences, the applicant’s drug and gambling addictions did not have any mitigating value in the sentencing exercise.
Even if the applicant’s point was made good, there is a further dimension to the issue. Mr Woods submitted at the hearing that if the judge had found the addictions materially contributed to the offending, he would then have asked himself the question whether there should be a consequential reduction in moral culpability.
On any view, the response would have been resoundingly in the negative for the reason explained by Wood CJ at CL in R v Henry at [253]-[255]. Paragraph 254 was one of the citations provided for the first principle described by McClellan CJ at CL in DPP (Cth) v De La Rosa at [177] concerning a possible reduction of moral culpability.
[253] The relevant principle as stated in Letteri by Badgery-Parker J, in a passage adopted by Gleeson CJ in Engert is as follows:
“… that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.”
[254] The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.
[255] The case of the drug dependent offender is very different in so far as the community is likely to see such a person as a perfectly appropriate medium to stand as an example to others.
When the applicant’s motivation for committing two very serious drug supply offences was partly to raise money to fund his addictions, and thereby implicitly also motivated in part by greed, and with such addictions not having arisen in circumstances that rendered them not a matter of personal choice, there could be no diminution of moral culpability or general deterrence or any other mitigation allowed to the applicant.
A final observation is that the sentence imposed was modest. The applicant committed two serious examples of drug supply offences carrying maximum penalties of imprisonment for life. He was found to be involved in the business of selling drugs and recklessly dealing with proceeds of crime worth over $350,000. He did so while on parole for earlier serious offending which also included drug supply.
The proposed ground of appeal should be rejected.
I propose the following orders:
Leave to appeal against sentence granted.
Appeal dismissed.
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Wonj
R [2026] NSWCCA 4
(2010) 79 NSWLR 1
(1999) 46 NSWLR 346
(2020) 79 NSWLR 1
(1995) 56 FCR 465
(1992) 34 FCR 100
(2022) 109 NSWLR 82