Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ibrahim v R [2022] NSWCCA 134 Hearing dates: 29 April 2022 Date of orders: 20 June 2022 Decision date: 20 June 2022 Before: Ward P at [1] Adamson J at [2] Dhanji J at [3] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIME – appeals – appeal against sentence – supply of prohibited drug – commercial and indictable quantity – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in assessment of the significance of the applicant's deprived background to his moral culpability – whether sentence unreasonable or plainly unjust – no error demonstrated – leave to appeal granted – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), s 527C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 53A Criminal Appeal Act 1912 (NSW), s 5(1)(c) Criminal Procedure Act 1986 (NSW), s 166 Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25 Poisons and Therapeutic Goods Act 1966 (NSW), s 16 Road Transport Act 2013 (NSW), ss 54, 205A Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Hoskins v R [2021] NSWCCA 169 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lloyd v R [2022] NSWCCA 18 Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nasrallah v R [2021] NSWCCA 207 Newman (a pseudonym) v R [2019] NSWCCA 157 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Ibrahim [2020] NSWDC 257 R v Millwood [2012] NSWCCA 2 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Vu v R [2006] NSWCCA 188 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: Ahmed Ibrahim (Applicant) Regina (Respondent) Representation: Counsel: T V Hickie (Applicant) E Wilkins SC (Respondent) Solicitors: Abbas Jacobs Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2018/244594 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2020] NSWDC 257 Date of Decision: 21 May 2020 Before: Hatzistergos DCJ File Number(s): 2018/244594 Judgment 1. WARD P: I agree with Dhanji J's reasons and with the orders his Honour proposes. 2. ADAMSON J: I agree with Dhanji J. 3. DHANJI J: The applicant, Mr Ahmed Salameh (also known as Ahmed Ibrahim), seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Hatzistergos DCJ in the District Court at Campbelltown on 21 May 2020. 4. The applicant was sentenced for the following offences: 1. Seq 1: Agree to supply a prohibited drug (non-cannabis leaf) of a commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (maximum penalty of 3500 penalty units or 20 years imprisonment or both); 2. Seq 3: Supply a prohibited drug (non-cannabis leaf) of an indictable quantity contrary to s 25(1) of the Drug Misuse and Trafficking Act (maximum penalty of 2000 penalty units or 15 years imprisonment or both); and 3. Seq 15: Supply a prohibited drug (non-cannabis leaf) of an indictable quantity contrary to s 25(1) of the Drug Misuse and Trafficking Act (maximum penalty of 2000 penalty units or 15 years imprisonment or both). 1. The applicant was also sentenced for the following related offences pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW): 1. Seq 9: Driving while disqualified contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW) (maximum penalty of 30 penalty units or 6 months imprisonment or both, and disqualification for a minimum period of 3 months); 2. Seq 10: Possess a prohibited drug, being 0.49 grams of 3,4 methylenedioxymethamphetamine, contrary to s 10(1) of the Drug Misuse and Trafficking Act (maximum penalty of 30 penalty units or 6 months imprisonment or both); 3. Seq 12: Possess a prohibited drug, being 0.88 grams of dexamphetamine, contrary to s 10(1) of the Drug Misuse and Trafficking Act (maximum penalty of 30 penalty units or 6 months imprisonment or both); 4. Seq 13: Possess a prescribed restricted substance, being 6.68 grams of Diazepam, contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW) (maximum penalty of 20 penalty units or 6 months imprisonment or both); and 5. Seq 14: Unlawfully in possession of property contrary to s 527C of the Crimes Act 1900 (NSW) (maximum penalty of 5 penalty units or 6 months imprisonment or both). 1. The applicant was, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), sentenced to an aggregate term of 6 years imprisonment commencing on 19 September 2019 and expiring on 18 September 2025 with a non-parole period of 3 years and 7 months expiring on 18 April 2023. The indicative sentences were as follows: 1. Seq 1: 5 years imprisonment with a non-parole period of 3 years; 2. Seq 3: 18 months imprisonment; and 3. Seq 15: 2 years imprisonment. 1. The applicant was convicted without penalty for the offences on the s 166 certificate pursuant to s 10A of the Crimes (Sentencing Procedure) Act. The applicant was disqualified from driving for 6 months pursuant to s 205A of the Road Transport Act in respect of sequence 9. 2. The applicant seeks leave to appeal on the following grounds: "Ground 1 – His Honour erred in his assessment of the objective seriousness of the offending; Ground 2 – There should have been a finding that the applicant's deprived background reduced his culpability; Ground 3 – The sentence imposed is unreasonable or plainly unjust." Factual background 1. The factual background was summarised by Hatzistergos DCJ in R v Ibrahim [2020] NSWDC 257 (the sentencing judgment) at [6]-[13]: "6 In May 2018, Strike Force Mick was established to investigate the ongoing supply of prohibited drugs by Mr Paul Muniak. As a result of that investigation, the Offender was identified as one of Mr Muniak's associates. 7 From 28 June 2018 to 8 August 2018, a mobile phone used by the Offender was intercepted by police. During that period, SMS' and calls were transmitted to and from the device. 8 From 13 July 2018 to 8 August 2018 the Offender agreed to supply to Mr Muniak a total of 3.7 kilograms of GBL over multiple separate occasions. The agreements to supply were by way of telephone communication, either spoken words or SMS. The communications involved the use of code words. An example of such a communication was given of the Offender and Mr Muniak engaging in several phone and text message conversations between 1:04pm on 14 July 2018 and 4:12am on 17 July 2018. In that conversation, the Offender confirmed he was in a position to supply GBL "in about 40 minutes". In another telephone communication between 7:13pm and 9:08pm on 21 July 2018, the Offender indicated that he was in a position to supply Mr Muniak with GBL "in 45 minutes". In another conversation between 7:23am on 30 July 2018 and 2:00pm on 31 July 2018, the Offender indicated to Mr Muniak via text message that he was he was in a position to supply forthwith. 9 During the date range, the Police intercepted 404 text messages and/or telephone calls. This is Sequence 1. 10 Between 14 July 2018 and 18 July 2018 the Offender supplied Mr Muniak with a total of 49 grams of methylamphetamine. He also used coded speech when engaging in these conversations. This is Sequence 3. 11 At about 12.39am on 9 August 2018, the Offender was in Newtown and left premises at Gibbes Street while wearing a satchel and carrying a large sports bag. He entered a white Corolla and drove onto Norfolk Street where he was arrested by police. He was subject to a search. Of the 3.7 kilograms of GBL the subject of Sequence 1, 700ml was with the Offender at the time of his arrest. 12 A separate amount of 313.3 grams of GBL was located on the Offender's person for the purposes of supply. This is Sequence 15. 13 At the time of the Offender's arrest, $206 cash was located on his person. During the search, the following items were also found in his possession: (1) 0.88 grams of dexamphetamine (Sequence 12) (2) 6.68 grams of diazepam (Sequence 13) (3) 0.49 grams of MDMA (Sequence 10) (4) 1 x NSW photo card and 2 x MasterCard debit cards in the names of persons unknown (Sequence 14)" Proceedings on sentence 1. Proceedings on sentence were conducted on 24 January, 6 March and 21 May 2020. The Crown bundle contained the indictment, agreed statement of facts, s 166 certificate, criminal history and custodial history. The Crown also tendered a copy of the Corrective Services NSW COVID-19 Response as at March and April 2020. The defence bundle contained two reports of Mr Chafic Awit, registered psychologist, dated 16 January 2020 and 28 February 2020, two character references, statement of Ms Chala Cakir, the applicant's wife dated 18 January 2020, statement of Mr Adel Salameh, the applicant's father dated 22 January 2020, letter of Ms Elizabeth Dening of NSW Health dated 21 January 2020 outlining the applicant's participation in programs at The Centre for Addiction Medicine, copies of urinalysis reports, attendance and participation sheet from the SMART Recovery Australia, letter from Blacktown Mt Druitt Hospital in relation to Ms Cakir's pregnancy dated 4 March 2020, bail acknowledgement, report of Dr Con Bonovas dated 12 May 2020, supporting material from Dr Ghalib Hamad and Dr Salvadore Gala, and a report on COVID-19 and the impact on prisoners in NSW by the Kirby Institute, dated 16 April 2020. The applicant also gave evidence in the proceedings. Remarks on sentence 1. Hatzistergos DCJ had regard to Vu v R [2006] NSWCCA 188 at [89] (and discussed further, below) where Hall J set out the factors relevant to an offence of agree to supply contrary to s 25(2) of the Drug Misuse and Trafficking Act, which was the basis for the offence in sequence 1. His Honour noted that these factors also had some relevance to the other supply offences. His Honour had regard to the quantities of drug involved in each sequence and found the applicant was "a middleman" supplying Mr Muniak. His Honour noted that the price of the drugs was not known, but found that the offending was not motivated by commercial gain or greed, but rather in order to support the applicant's own drug addiction. His Honour (at [25]) referred to Mr Awit's opinion that there was a "psychological nexus between the applicant's underlying psychological condition and the offences before the Court in that the Offender struggled with a number of anxiety/depression symptoms over the years, and in the lead up to the date of the offences". Having regard to this evidence his Honour accepted that the applicant's moral culpability was "reduced somewhat on account of his anxiety and depression". Having regard to these matters, his Honour ultimately came to the view that sequence 1 fell within the "broad mid-range of objective seriousness although not in its higher end", sequence 3 fell "towards the lower-range" and sequence 15 fell "below mid-range". 2. In relation to the applicant's subjective case, Hatzistergos DCJ considered a range of factors under the headings of "plea of guilty", "remorse", "prior record", "background", "employment", "health", "drug history and mental health", and "prospects of rehabilitation and likelihood of offending" at [32]-[97]. His Honour found that the applicant was genuinely remorseful. He applied a 25% discount in relation to each offence on account of the applicant's plea. His Honour accepted that his incarceration has been made more onerous by reason of his autoimmune disease, which put him at a higher risk of contracting and suffering severe symptoms of COVID-19 and consequently at a greater level of anxiety. His Honour outlined the applicant's prior record and noted that no submission had been advanced that it amounted to a mitigating factor or demonstrated prior good character. 3. More relevantly for present purposes, Hatzistergos DCJ outlined the applicant's background as contained in Mr Awit's report. His Honour noted that the applicant reported "growing up in a refugee camp from the age of two to the age of eight due to be [sic] being of Palestinian background" and "witnessing a number of traumatic incidents, which included the deaths of children that he knew as well as many others" and "numerous incidents of bombings". The applicant reported that his family migrated to Australia and was granted refugee status when he was eight years of age, from which time he commenced experiencing anxiety symptoms. His Honour then noted the applicant's difficulties following his migration, which included bullying he experienced throughout primary school and high school, severe financial instability experienced by his family which forced them to leave their home and seek assistance from the Housing Commission, and negative incidents that occurred due to his family's ethnicity. His Honour noted that this prior history was supported to some extent by the statement of the applicant's father, which recorded that the applicant "had a difficult life", "lived in a refugee camp during a very violent and unstable period" and had "experienced plenty of childhood trauma due to these events". His Honour noted the applicant, his father and brother lost their life savings pursuing business in the Emirates when the applicant was around the age of 25. Further, delays experienced when the applicant sought to establish an export business in 2017, in which he invested substantial savings, led to "a number of adverse symptoms". 4. In relation to the applicant's drug history, Hatzistergos DCJ noted Mr Awit's observation that the applicant had "struggled for years with an illicit substance addiction which was caused and exasperated by his underlying anxiety and depression condition" but added that there has been "significant improvement with the underlying conditions and reported symptoms". Having regard to the urinalysis reports, attendance at regular therapy sessions, the various statements outlining his commitment to addressing his substance abuse and Mr Awit's report, his Honour found that the applicant "has insight, appears well motivated and has good family and community support" and "has good prospects of rehabilitation". 5. After considering cases said to be comparable by the applicant, the various purposes of sentencing and making a finding of special circumstances on account of the applicant's health and the need to facilitate his rehabilitation, his Honour set out the indicative sentences and imposed the term of imprisonment referred to above. The grounds of appeal Ground 1 – His Honour erred in his assessment of the objective seriousness of the offending 1. While the ground refers to the offending generally, the submissions in support of this ground made plain the complaint relates only to sequence 1. With respect to that offence, his Honour found the offending fell within the "broad mid-range of objective seriousness although not in its higher end". This conclusion was reached after a detailed analysis by his Honour of the circumstances of the offence and matters relevant to the assessment of its objective seriousness. His Honour referred to the decision of this Court in Vu at [89] where Hall J set out the following factors as relevant to the assessment of the offence of agreeing to supply a prohibited drug: "• The terms of the offer, in particular, as to the quantity of a drug, its price, etc. • Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs. • Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed. • Whether the offeror at all material times had the intention to fulfil the offer. • Whether the offeror had the capacity to fulfil the offer to supply. • Whether the offeror attempts to fulfil the offer. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances." 1. Having set out the above, the sentencing judge then considered various aspects of the present matter including the period of time over which the offence occurred and quantity of drugs the subject of the agreement to supply. 2. The applicant takes issue with two aspects of his Honour's reasoning. First, it is submitted that his Honour found the applicant to be "a middleman" without analysis or definition of that term. While it is true that labels should not be used in a manner that obscures what an offender actually did (see The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54), the criticism is, in my view, unwarranted. Before the sentencing judge, the applicant's counsel submitted the applicant was a "street dealer/middleman". Clearly, on the facts, the applicant was above the level of a "street dealer". That term usually describes a person supplying drugs to end-users, in relatively small quantities. The fact that a commercial quantity was supplied does not necessarily mean that a person is not supplying at a "street level" given that a large quantity can be supplied as a result of many small supplies over a period of time. Here, however, it was plain from the agreed facts that Mr Muniak, the person to whom the applicant was supplying drugs, was himself on-supplying those drugs. In these circumstances it is difficult to see any more favourable description of the applicant than that of a "middleman". Further, his Honour did not simply sentence the applicant on the basis of this label, but rather, engaged in an analysis of what the applicant, in fact, did. 3. The second criticism of his Honour's categorisation of the applicant's role is that, having found the offending was "not motivated by commercial gain or greed", his Honour failed to engage in any analysis of how this impacted the assessment of objective gravity. Again, there is no substance to this complaint. His Honour had, in setting out the principles articulated in Vu, clearly indicated that the extent to which the applicant was motivated by commercial gain or greed was relevant to the seriousness of the offending. His Honour's finding was clearly made for this purpose and was, therefore, considered in determining objective seriousness. 4. As has been said many times, a finding of objective seriousness is a matter for the determination of a sentencing judge, reviewable only on a limited basis: see Mulato v R [2006] NSWCCA 282. The offence took place over three weeks which encompassed multiple agreements to supply. The aggregate of those various individual agreements was a quantity just below the threshold for the large commercial quantity of the particular drug concerned. That aggregate was based on an ongoing relationship between the applicant and the other party (rather than, for example, a series of unfulfilled promises). In these circumstances the finding that the offence was in the mid-range of objective seriousness was open to the sentencing judge. This ground is not made out. Ground 2 – There should have been a finding that the applicant's deprived background reduced his culpability 1. There was no issue at sentence, nor on appeal that the applicant had suffered a childhood and early adulthood marred by trauma and deprivation. His Honour was aware of that background and made extensive reference to it in his reasons for sentence. The applicant complains that despite the sentencing judge's explicit acknowledgement of this background, there was no finding that that background reduced the applicant's moral culpability. 2. His Honour's explicit reference to the applicant's background precluded a submission on behalf of the applicant that it was not taken into account. The applicant's complaint is that the evidence was not taken into account in accordance with proper principle, and the sentencing discretion therefore miscarried. The principle the applicant relies on is that said to be derived from the High Court's decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. 3. The respondent submits that a Bugmy case was not argued and accordingly Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 applies. While the approach of the parties at first instance will frame the issues in a case in a manner relevant to the determination of any appeal, it remains necessary to determine whether there has been an error of principle. I do not understand Zreika to state otherwise. I will return to this issue later in these reasons. 4. The respondent further submits that, while there was no finding of reduced culpability based on the applicant's background, given the sentencing judge made a finding that the applicant's moral culpability was reduced on account of his anxiety and depression, there was "no material error" in the sentencing of the applicant and this ground should therefore be dismissed. To the extent that this submission suggests that the ground should be dismissed on the basis that the application of "Bugmy principles" would not have made any difference, I do not accept it. In Newman (a pseudonym) v R [2019] NSWCCA 157, Basten JA (at [11]) cautioned against the use of the term "material" for the purposes of distinguishing between errors which impact on the sentencing discretion and those that do not. As his Honour explained, the proper approach mandated by the decision of the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, is to consider whether any error on the part of the sentencing judge had the capacity to influence the sentence. If it did, it means the offender has not been afforded his entitlement to the determination of his sentence according to law and the appellate court must re-exercise the sentencing discretion. The appellate court does not, in this situation, embark on an analysis of whether the error did or did not, in fact, make a difference to the result at first instance. A misapplication of principle relating to the determination of an offender's moral culpability clearly has the capacity to impact on the sentence to be imposed. It is necessary therefore, to determine whether the applicant's complaint is established. 5. The proper approach to the sentencing of offenders, known as the process of "instinctive synthesis" is that described by McHugh J in Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 (at [51]) in which the judge "identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case". His Honour's approach was endorsed by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]. Of course, where an offender is entitled to a discrete discount on the basis of a matter not relevant to a sentencing purpose (such as the utilitarian value of a plea of guilty), that discount is applied after arriving at a starting point derived by application of the process of instinctive synthesis. 6. In the present case, the applicant contends that the applicant's background was correctly identified to be a relevant factor but that the sentencing judge failed to apply proper principle at the stage of discussing its significance. In order to determine this complaint, it is necessary to understand the principle said to be derived from Bugmy and its application to the present case. 7. Bugmy involved an Aboriginal offender raised in circumstances of profound disadvantage. As has been observed there is no magic in the word profound: Lloyd v R [2022] NSWCCA 18 at [34] per McCallum JA (as her Honour then was); Nasrallah v R [2021] NSWCCA 207 at [87] per Hamill J, citing Brereton J in Hoskins v R [2021] NSWCCA 169 at [57]. Nor is the principle confined to Aboriginal offenders. The appeal in Bugmy, was from the decision of this Court where the view was taken that the relevance of the offender's youth and social deprivation diminished over time, particularly in the context of the offender's substantial history of criminal offending. The plurality in the High Court disagreed and said (at [40]): "The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way." 1. Their Honours continued (at [42]–[44]): "42. It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the appellant's deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case. 43. The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. 44. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." (footnotes omitted) 1. The relevance of an offender's background to the determination of a sentence is necessarily restricted to its relevance to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act. As can be seen from the passages set out above, particularly at [40] and [42], a person's background may operate to inform his, her or their moral culpability. This, in turn, may impact, in a manner not susceptible to analytical precision, on the role to be played by the need to ensure the offender is adequately punished, specific and general deterrence, community protection, rehabilitation, accountability and denunciation (see ss 3A(a)-3A(f)). The point to be made is that an offender's background is not relevant in and of itself, but rather its relevance lies in the manner in which it informs the purposes of sentencing. This point was made by Simpson J (as her Honour then was) in R v Millwood [2012] NSWCCA 2. (See also the helpful discussion in Lloyd v R at [25]-[32].) 2. In the present case the sentencing judge did not explicitly find that the applicant's background impacted his moral culpability. His Honour did, however, make findings with respect to the applicant's moral culpability in the context of the evidence of his anxiety and depression. His Honour said, in the context of his consideration of the objective seriousness of the offence (at [25]-[26]): "25 As will be discussed below in the context of the Offender's drug history, Mr Chafic Awit psychologist confirms that in his professional opinion that there was a psychological nexus between the Offender's underlying psychological condition and the offences before the Court in that the Offender struggled with a number of anxiety/depression symptoms over the years, and in the lead up to the date of the offences. 26 The Crown accepted that the Offender's anxiety and depression were such as to reduce his moral culpability. The Offender's anxiety and depression is discussed further below. It suffices to state that I accept that the Offender's moral culpability is reduced somewhat on account of his anxiety and depression, although I would set it apart from self-induced addiction which ordinarily does not diminish moral culpability for the predictable consequences of that addiction.[18] As Mr Awit acknowledges in his report the Offender himself made a choice, as he found it too difficult to go through crashes and deal with withdrawals or seek treatment at the time. Furthermore any suggestion of self-induced intoxication at the time the offending would not mitigate sentence." 1. As can be seen his Honour found "somewhat" reduced moral culpability on account of the applicant's anxiety and depression. Importantly, for present purposes, his Honour implicitly linked this to the applicant's drug addiction. Despite the slightly odd choice of the word "although" in the second sentence of paragraph [26], above, his Honour, in stating that he would "set it apart from self-induced addiction", appears to have accepted that the applicant's drug addiction was related to the mental conditions. It is noteworthy that in fn 18, his Honour referred to the reasons of Spigelman CJ in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [198]. It is helpful to set out what Spigelman CJ there said in its context (at [197]-[202]): "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 neurobiological 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." 1. The sentencing judge in setting "apart" the applicant's addiction from "self-induced addiction" distinguished the applicant from the usual case where addiction is, as described by Spigelman CJ, "a completely free choice". This provided the foundation to find the applicant's moral culpability was reduced given that the culpability of an offender who commits crime motivated by addiction will vary (as acknowledged by Spigelman CJ at [197]). See also the detailed discussion of the issue in R v Henry per Wood CJ at CL from [215] onwards, culminating in the summary of conclusions at [273]. 2. Hatzistergos DCJ, in the passage discussed above, noted that the applicant's anxiety and depression were to be discussed further, later in the reasons. His Honour did this under the heading "subjective factors". Under that heading his Honour, as noted above, discussed various matters under separate subheadings including the "offender's background" and "drug history and mental health". Under the former heading his Honour referred to the applicant's early life including his experience of growing up in a refugee camp as a Palestinian in Southern Lebanon between the ages of two and eight, and his exposure to numerous incidents of bombings that took place during that time. Significantly, his Honour observed that the applicant reported that he commenced experiencing anxiety symptoms from this time. There is no suggestion his Honour doubted this aspect of the history. His Honour therefore appreciated the link between the applicant's background and his anxiety. 3. With respect to the applicant's drug history and mental health, it is significant that these were discussed together. His Honour had, at this point, already found that the applicant committed the offences in order to support his drug addiction. His Honour noted and appeared to accept Mr Awit's observation that the applicant "has struggled for years with an illicit substance addiction which was caused and [exacerbated] by his underlying anxiety and depression condition". His Honour also appeared to accept that while the applicant had seen a significant improvement in his underlying conditions, he was suffering severe anxiety during the period of the offending. 4. Having considered the objective and subjective circumstances, his Honour turned to the determination of the appropriate result under the heading "sentence". In the context of the purposes of sentencing, his Honour said "[g]eneral deterrence and protection of the community ordinarily loom large in such matters of this nature and I have borne in mind the acknowledgement of reduced moral culpability earlier described". Arguably, his Honour may have meant "however" or something similar instead of the word "and". While there might be room for debate as to the particular purposes of sentencing impacted in this case, it is sufficient to note for the purposes of this argument that his Honour had regard to his finding that the applicant's moral culpability was reduced. 5. On a fair reading of the entirety of the sentencing judge's comprehensive remarks on sentence, I am of the view that his Honour not only had regard to the applicant's background, but properly understood its significance. That significance in the circumstances of the present case was the manner in which the background impacted the applicant's development, manifesting in his underlying mental health issues. His Honour appreciated that these issues in turn led to the applicant's difficulties with addiction. That being the case, I am of the view that there was no error by way of any failure by the sentencing judge to take into account the impact of the applicant's background on his culpability. 6. Before leaving the matter, I pause to observe that insofar as his Honour could have been more explicit with respect to the relationship between the applicant's background and his culpability (and I do not mean to suggest that he ought), this is understandable in the context of the manner in which the matter was argued. Before his Honour, the argument on behalf of the applicant was that the applicant's moral culpability was reduced as a result of the anxiety and depression, linked as they were to the drug addiction. There was no reference to Bugmy, or to the background of deprivation. Nor was there any need. Ultimately, it was plain that his Honour understood the link between all three things: background, anxiety and depression, and addiction ultimately leading to the commission of the offences: cf Zreika at [80]. 7. For the reasons set out above, I would not accept this ground. Ground 3 – The sentence imposed is unreasonable or plainly unjust 1. A complaint of manifest excess is a complaint based on error. The error is, however, not an error capable of identification, sometimes described as "specific" or "patent" error. The contention is that the outcome is such that it can be inferred that some error must have occurred, sometimes described as "latent" error. A summary of the principles to be applied in a complaint of manifest excess was set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust." 1. As set out above, the sentence imposed was an aggregate sentence of 6 years comprising a non-parole period of 3 years and 7 months and a balance of term of 2 years and 5 months. The appeal is against this sentence and not the indicative sentences. Nonetheless, it is instructive to consider the indicative sentences as they are an essential step in the process of the determination of the aggregate sentence. Those indicative sentences have been set out above at [6]. It can be seen that sequence 1 had a dominant effect on the aggregate sentence. That aggregate was one year longer than the indicative sentence imposed for sequence 1, reflecting a significant (but not inappropriate) degree of notional concurrence between the indicative sentences. 2. The indicative sentences for sequences 1, 3 and 15 were arrived at after the application of a discount of 25% for the pleas of guilty to the starting points of 6 years and 8 months, 2 years and 2 years and 8 months respectively. 3. As I have found above, it was open to the sentencing judge to find that the objective gravity of sequence 1 was in the mid-range of objective seriousness. I have referred to the factors on which this was based. Additionally, the applicant did not have the benefit of prior good character. On the other hand, the applicant's background was such as to reduce his moral culpability for the offending. Further, there was much that was positive in his subjective case, particularly insofar as the evidence suggested that he had done much to overcome the difficulties that he had endured such that the sentencing judge found him to have good prospects of rehabilitation. Ultimately, however, "within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for [the sentencing judge]": Bugmy at [24]. While it is arguable that here, given the applicant's progress, greater weight might have been given to rehabilitation, the seriousness of the offence could not be overlooked. 4. I have had regard to the applicant's submissions including the statistics and the results in previous decisions relied on by the applicant. As the applicant acknowledged, no two cases are the same. Insofar as the applicant sought to compare the aggregate sentence imposed in this matter with results in relation to the supply of a commercial quantity of a prohibited drug in other matters, I note that, the proper comparison, to the extent it is informative, is between the indicative sentence with respect to sequence 1 with sentences imposed in other cases of supply of a commercial quantity of a drug, with, where appropriate, adjustment to allow for any discount applied to a starting point. Neither the statistics, nor the cases referred to by the applicant were of assistance in the circumstances of this case. 5. When regard is had to the maximum penalty, the standard non-parole period, the seriousness of the offending, and the offender's subjective case, I am of the view that the starting point of 6 years and 8 months was within the available range for the offence in sequence 1. 6. Sequences 3 and 15 were described as falling "towards the lower-range" and "below mid-range" respectively. The indicative sentences imposed appear to reflect these unchallenged assessments, after due regard to the applicant's subjective case. Given the significant degree of notional concurrence between these sentences and that indicated for sequence 1 in the aggregate sentence imposed, I am satisfied the aggregate sentence was within the available range. The non-parole period reflects a generous reduction for special circumstances which in turn was appropriate to reflect the applicant's rehabilitative progress discussed above. 7. I am of the view that this ground is not established. Orders 1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. ********** Amendments 31 October 2022 - [27] - case citation italicised [39] - case citation italicised 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: 31 October 2022