Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Blakeney v R [2022] NSWCCA 277 Hearing dates: 2 December 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Before: Bell CJ at [1] Ward P at [2] Wilson J at [3] Decision: 1. Refuse leave to advance grounds 1, 3 and 4. 2. Otherwise grant leave to appeal. 3. Dismiss the appeal. Catchwords: CRIME – SENTENCE – appeal against sentence – supply large commercial quantity of a prohibited drug – question of whether proper allowance made for future prospects or rehabilitation – question of whether a finding of remorse should have been made – question of whether greater allowance should have been made for "quasi-custody" Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Apulu v R [2022] NSWCCA 244 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Gould v Director of Public Prosecutions (Cth) (2018) 273 A Crim R 91; [2018] NSWCCA 109 Imbornone v R [2017] NSWCCA 144 La v R [2021] NSWCCA 136 Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 R v Quinlan (2021) 293 A Crim R 253; [2021] NSWCCA 284 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 Robertson v R [2017] NSWCCA 205 Wong v R [2018] NSWCCA 263 Category: Principal judgment Parties: J K Blakeney (Applicant) The King (Respondent) Representation: Counsel: A Chhabra and Ms H Blake (Applicant) C Young (Crown) (Respondent) Solicitors: EJ Sirrie Defence Lawyers Solicitor for Public Prosecutions (NSW) (Crown) (Respondent) File Number(s): 2020/00224125 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 20 May 2022 Before: Hock DCJ File Number(s): 2020/00224125 Judgment 1. BELL CJ: I agree with Wilson J. 2. WARD P: I agree with Wilson J. 3. WILSON J: On 20 May 2022 the applicant, Jordan Blakeney, was sentenced in the District Court for an offence of supplying a prohibited drug in not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Such an offence carries a maximum penalty of life imprisonment, and a standard non-parole period ("SNPP") of 25 years. The applicant was sentenced to a term of 3 years and 6 months imprisonment, with a non-parole period ("NPP") of 1 year and 9 months fixed. His sentence commenced on 15 September 2021, and he will be eligible for release to parole on 14 June 2023. The total term expires on 14 March 2025. 4. On 19 October 2022 the applicant filed a notice of his application for leave to appeal against the sentence imposed upon him. If granted leave, he advances four grounds, a fifth ground being abandoned at the hearing of the matter before us. They are: "Ground 1: The sentencing judge erred in failing to make a finding as to the applicant's prospects of rehabilitation Ground 2: The sentencing judge erred in failing to make a finding as to whether the applicant had shown remorse Ground 3: The sentencing judge erred in failing to take into account the totality of the mental health diagnoses of the applicant Ground 4: The discretion of the sentencing judge miscarried when departing from the original position that 50% of the period in residential rehabilitation ought to be counted as quasi-custody Ground 5: [Abandoned]" 1. For the reasons that follow, I would dismiss the appeal. The Proceedings in the District Court 1. The applicant entered a plea of guilty to the charge against him when the matter was in the Local Court. He was committed to the District Court for sentence, although a dispute as to the facts of the offence was noted. That dispute was resolved, it seems by the parties reaching agreement, on 21 February 2022 and the matter was listed for sentence. The applicant's sentence hearing and that of a co-offender, Kane Reading, came before her Honour Judge Hock on 8 April 2022. The Crown Case on Sentence 1. The Crown tendered an agreed statement of facts, from which the sentencing judge ultimately drew the facts of the applicant's crime. 2. The offence was discovered after a strike force was established in April 2020 to investigate the supply of prohibited drugs by the co-offender Mr Reading and two others, Brianna Reading and Nathan Langtry. The offenders operated from a garage in suburban Kingsford where cocaine was stored and prepared for sale, and into which a covert surveillance device was installed on 29 May 2020. 3. In the period 30 May to 29 July 2020 the co-offenders, individually or together, attended the garage on a regular basis, sometimes in possession of a block of cocaine. Inside the garage smaller quantities of cocaine were removed from the block, weighed, and packaged into individual freezer bags. A shop press and mould that were used occasionally to press cocaine were kept in the garage. 4. The applicant personally attended the garage on 16 occasions in the period from 30 May to 29 July 2020, either alone or with one or more of his co-offenders. On most of those occasions he extracted amounts of cocaine from the larger block, weighed the smaller amount on a set of scales, and bagged the smaller quantities in small bags. 5. On the occasions when the applicant attended the garage personally 1.75 kilograms of cocaine was prepared. A total of 4 kilograms of cocaine was prepared for supply by the participants in the joint criminal enterprise during the relevant period. 6. On 6 June 2020 police executed a search warrant upon the garage, locating, relevantly, a small bag of cocaine with a gross weight of 4 grams and a purity of 75%; a block of cocaine and lidocaine with a gross weight of 236 grams and a purity of 43.5%; and a shopping bag containing two smaller bags of powder with a gross weight of 508 grams. Also found were a shop press for "blocking up" cocaine, a spoon covered in cocaine, scissors, scales, a block mould, and other tools. A quantity of empty packaging was also located. 7. The total weight of cocaine recovered from the garage was 156.8 grams. 8. The applicant was arrested on 31 July 2020. He refused to be interviewed. 9. The Crown also tendered the applicant's criminal history which, although limited, revealed a conviction for supplying a prohibited drug, together with an offence of having goods in custody, on 1 April 2014. The latter offence attracted a fine; the drug offence was penalised by a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [as the provision then was], requiring the applicant to submit to the supervision of the Probation Service and accept drug and alcohol counselling. 10. A Sentencing Assessment Report ("SAR") was before her Honour. The author noted that the applicant was living with his mother and step-father and was fully employed as a buyer/planner for an electronics company. He had formerly held positions with the Australian Navy in logistics. The applicant was said to be educated to tertiary level, holding a Masters degree in Business Administration, [1] with a position having been offered to him for a further Masters degree, in Data Science. 11. With respect to the offence the applicant pointed to his mental health and use of drugs as features that had contributed to his conduct. The report author recorded: "Mr Blakeney appeared to be remorseful for his actions, he described feeling disgusted and embarrassed by his offending behaviour. Mr Blakeney stated he had gone from being successful in his career and about to get married to losing everything to his addiction to illicit substances; offering he regrets not seeking professional help early". [2] 1. The applicant gave a history of having been introduced to illegal drugs at age 15 by a family member. The deaths of an uncle and three friends had led to an escalation in his drug use, which he regarded as assisting in the management of his anxiety and insomnia. The crime had been committed to fund his addiction. 2. The applicant reported having completed a 12 month residential rehabilitation programme, being abstinent from drug use thereafter. He expressed his willingness to undertake psychological therapy. 3. The applicant's mental health was noted to be "complex", with diagnoses of Attention Deficit Hyperactivity Disorder ("ADHD"), Post Traumatic Stress Disorder ("PTSD"), Autism Spectrum Disorder, insomnia, severe anxiety, and depression. His condition worsened following a motor vehicle crash in 2020. He was under the ongoing treatment of a psychiatrist. 4. Of the applicant's insight into his conduct the author of the SAR observed: "Mr Blakeney appeared to show limited insight into the impact of his offending behaviour; focusing on the disappointment expressed by his family and ex-fiancée. He appeared unable to identify the impact on the community." [3] 1. An assessment of the applicant's risk of re-offending utilising the Level of Service Inventory – Revised placed the applicant as at Medium – Low risk. 2. A promotional leaflet from the provider of the rehabilitation course that the applicant had completed was also before the sentencing court in the Crown case. According to the leaflet the service, Connect Global, was established by "prominent local recovery advocate Ross Pene in 2013" and offers a "substance abuse restoration programme" directed to men with addiction issues. [4] The facility: "[…] is situated in tranquil bushland on the waterways of Port Stephens, located approximately 45mins north of Newcastle, NSW. Providing participants with a generous nature filled space offering a swimming pool, tennis courts, basketball half court, fishing, bike riding and various other indoor and outdoor activities." [5] 1. In addition to drug rehabilitation counselling the leaflet noted the availability of programmes directed to literacy, vocational training, job placement assistance, and a health and fitness programme. The facilities were listed as including: "Self-contained Cabins, Swimming Pool, Tennis Court, Fishing + Kayaking, Workshop Space, Gym / Weights Space, Pool Table, Table Tennis, Shared Laundry". [6] 1. Details of the sentences imposed upon co-offenders were also before the District Court. As there is no parity ground that material is not further referred to. The Subjective Case 1. The applicant did not give evidence, although he did read a lengthy – 145 paragraph – affidavit, sworn on 1 April 2022, in which he set out his history, personal circumstances, mental health situation, and details of the rehabilitation course he had completed. 2. The applicant described a chaotic upbringing after his parents divorced when he was aged 2 years, as he alternated between his parents' respective houses, and was in conflict with his stepmother when residing with his father. He felt that he did not fit in at school and he made no effort. At about 14 years of age his stepmother excluded him from his father's house and he became depressed. He began using drugs at the invitation of a family member, and thereafter used cannabis and ecstasy regularly. His drug use led to bad behaviour at school, and he was expelled from one high school and disciplined regularly at another. An experience of being sexually assaulted by a female family member at around age 15 or 16 compounded damage done by earlier sexual assaults by another female family member when the applicant was aged about 5 or 6, and the applicant's drug use increased. The death of a much loved family member when the applicant was in his mid-twenties further exacerbated his addiction. 3. The applicant left school in Year 10 and worked in casual customer service positions for a time. He thereafter undertook various unskilled work, before moving into a logistics position with a contractor to the Navy when he was aged 22 years. Over a number of years, the applicant held positions with an increasing level of responsibility in companies managing logistics and supply for the Navy. He also trained to be a tattoo artist in these years, serving a 4 year apprenticeship. The applicant was not, however, able to work in that capacity as the NSW Police rejected his application for a licence on character grounds. This setback led the applicant to the use of cocaine and alcohol. 4. The applicant studied for a diploma in Logistics and a diploma in Management and Leadership and achieved these qualifications. Thereafter, his career in logistics with contractors to the Navy progressed, and the applicant was granted a high level security clearance for the purposes of his employment. His career would have been further advanced but for his arrest, with a promotion scheduled. 5. In May 2020 the applicant was involved in a motor vehicle crash in which he and his then fiancée were seriously injured. The applicant became the carer for his injured fiancée. His abuse of cocaine increased. The applicant deposed that his relationship with his fiancée ended after his arrest. The end of this relationship, the motor vehicle crash and subsequent heightened drug use, and the applicant's arrest exacerbated the applicant's poor mental health, as did a series of personal losses, including the deaths of family and close friends. 6. On arrest on 31 July 2020 the applicant was initially refused bail. He was granted bail on 4 December 2020 to be admitted to Connect Global's 12 month programme, a programme that he deposed "…completely turned [his] life around". [7] He successfully completed the residential programme in December [actually November] 2021, and entered the Outpatient Programme, with an amendment to bail conditions made so that the applicant could return to Sydney to live with family. 7. On returning to Sydney the applicant secured employment in logistics and, as at the date of sentence, had an offer of a more senior logistics position with a contractor with the Australian Defence Force, a position his incarceration prevented him from taking up. 8. The applicant continued to be affected by the injuries he sustained in the May 2020 crash, requiring fortnightly physiotherapy to assist him with pain management. He was also receiving treatment from psychiatrists, including a prescribed anti-depressant, although the applicant had discontinued his medication not long before sentencing, disliking the side effects. 9. An affidavit from the applicant's mother, sworn on 30 March 2022, was also read in his case. Mrs Blakeney deposed that she and her then husband had separated when the applicant was 4 years old and then divorced. Mrs Blakeney had very little contact thereafter with the applicant's father. She was aware that he remarried quickly, when the applicant was aged 5 years old, and subsequently had two children with his new wife. The applicant did not have a positive relationship with his stepmother and felt very excluded from his father's new family. He was unhappy with his regular visits to his father's home and, being given the option by his mother at age 12 as to whether to continue the visits or not, he ended them, having limited contact thereafter with his father. 10. Mrs Blakeney remarried and moved with her son to her husband's house, on a Naval Estate. The applicant went to high school, but hated school, and struggled in these years. 11. When the applicant was in Year 9 Mrs Blakeney began to suspect that he was using drugs. She now regards this as due to the influence of her brother, who lived with the family for 10 years, and used illicit drugs himself. Her brother died when the applicant was about 27. 12. Within two years of the death of the applicant's uncle, his grandfather died, together with three close friends. At about the end of that period, the applicant was involved in the car crash in which both he and his fiancée were badly injured. Although the applicant had not been at fault, he felt very guilty because of the injuries occasioned to his then fiancée. He frequently spoke of committing suicide. 13. When the applicant became aware that police wanted to interview him, he told his mother that he was about to be arrested, and outlined the likely charges. Mrs Blakeney said: "[…] He was embarrassed and ashamed and I could see how difficult it was for him to confide in me. He apologised to me repeatedly, saying how sorry he was to let me down." [8] 1. Mrs Blakeney felt that the applicant was depressed in custody, and she was greatly relieved when he was granted bail to attend a rehabilitation facility, Connect Global. She observed consistent improvement in the applicant's well-being and outlook in the 12 month period he spent at the facility and, whilst he remains an anxious and depressed person, he has expressed his determination to live a positive lifestyle in future. On completing the programme and being allowed to live with Mrs Blakeney under conditions of bail, she observed him working hard to gain employment, continuing with therapy for his mental health issues, and studying to improve his education. 2. Mrs Blakeney said her son knew that he had "seriously broken the law". [9] Despite that, she thought that a return to prison could only harm him. 3. The applicant consulted a clinical psychologist for the purposes of having a report prepared for sentence. Dr Christopher Lennings saw the applicant for a two hour period on 11 December 2021, taking a history of the applicant's deteriorating psychological well-being following the deaths of two family members and three friends, and the car crash. In this context the applicant said that his use of alcohol and cocaine escalated dramatically. 4. The applicant told Dr Lennings that he had been depressed since childhood, struggling with the shared parenting arrangements between his parents after their separation, and "being kicked out of his father's house by his step-mother" when he was 14. [10] He reported childhood sexual assaults and difficulties in school, being expelled in Year 10. His drug use began during his school years, becoming heavy in 2020, following deaths of significant people in his life and the car crash. Although he did very well once he began working in logistics, the applicant remained depressed, becoming suicidal after the crash in May 2020. He had obtained treatment for his depression following this incident. 5. On testing the applicant returned results which, although potentially affected by exaggeration of symptoms, indicated significant distress and impairment. Dr Lennings thought that the applicant's substance abuse had been highly deleterious to him. The applicant met criteria for stimulant dependence (in remission), alcohol misuse disorder, and Major Depression. He also reported symptoms consistent with anxiety, and post-traumatic stress. The applicant continued to experience suicidal ideation, although he was highly motivated for treatment and positive change. Dr Lennings also referred to the applicant's account of having been diagnosed with ADHD, and felt that the applicant demonstrated some criterion of an Autism Spectrum Disorder. 6. The applicant told Dr Lennings that he knew one of his co-offenders as a person from whom he could get drugs and he became involved in the offence to minimise the expense of obtaining cocaine for his use. He told Dr Lennings that he felt "ashamed and embarrassed about his behaviour". [11] The applicant gave an account of having lost his fiancée and his career as a consequence of his arrest. 7. Dr Lennings noted that the applicant: "[…] regrets the offence, not only for the suffering it caused him, but also for the impact on [his former fiancée]. He understands what he did […]." [12] 1. Dr Lennings concluded that the applicant had been suffering from severe mental health conditions at the time of the offence, using drugs to manage his symptoms. The applicant had developed "good insight into his behaviour, and the consequences of such behaviour for himself and others" in the doctor's opinion. [13] 2. The applicant had a good prognosis according to Dr Lennings and, if he continued with treatment and remained abstinent from drugs, his risk of reoffending was regarded as low. 3. Other progress or treatment reports from treating psychiatrists referred to the applicant having a diagnosis of ADHD and PTSD, as well as Depression. Other medical reports noted that the applicant required surgery for an injury to his nose sustained in the May 2020 crash. 4. A report from Connect Global dated 16 February 2022 was also before the sentencing court. The report noted that the applicant had successfully completed the twelve month residential rehabilitation programme which he had entered on 3 December 2020, and moved into an Extension Programme on 1 November 2021. He was observed to have been "one of the most outstanding clients" in the residential programme. The report author noted that: "During Jordan's time within our care he demonstrated deep remorse for his actions/behaviour and has displayed a strong mindset to never revert to his old ways." [14] […] "Jordan has expressed sincerely with me his regrets with making wrong decisions and understands accountability for the consequences of his actions." [15] 1. The applicant had demonstrated his willingness to assist others and had become a mentor to other residents. Regular urinalysis was clear of any prohibited drug. 2. During the first four months of the residential component the applicant had not been permitted to receive any personal visits from family or friends, and he left the facility only for legal or medical appointments. He did not have a mobile telephone in that time. From April 2021 the applicant's bail was varied and he was permitted to leave the facility at weekends and stay with his mother, to facilitate access to medical treatment. 3. Other material before the sentencing judge confirmed the applicant's employment history, and his enrolment to study a Masters in Business Administration. 4. In written and oral submissions to the sentencing court the applicant's mental health was pointed to as a feature that required significant amelioration of sentence, consistent with the principles given in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. The applicant contended that, consistent with Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 and Robertson v R [2017] NSWCCA 205, there was no requirement that the applicant be sentenced to a term of imprisonment. It was contended that the applicant was not the principal in the offending, and an intensive corrections order was the appropriate penalty. The Remarks on Sentence 1. The sentence hearing proceeded over two separate days, 8 April 2022 and 20 May 2022. Sentence was imposed ex tempore on the second of those hearing dates. 2. Having noted the applicable maximum penalty and SNPP for the offence, her Honour set out the facts of the crime, drawn from the agreed statement of them. 3. As to the objective gravity of the applicant's crime her Honour noted that two important considerations in making that assessment were the quantity of prohibited drug involved and the role of the offender. The applicant had direct involvement in the supply of an amount of cocaine that was 1.7 times the weight of cocaine specified as the threshold for a large commercial quantity, being 1 kilogram; whilst the enterprise in which he was a participant had supplied 4 kilograms. Noting that there was no upper limit to the range that constituted a large commercial quantity, her Honour concluded that the amounts involved were not substantial, although the enterprise was a commercial one. 4. Having regard to the number of times the applicant attended the garage and the lesser quantity of cocaine he was directly concerned with, the sentencing judge found that the applicant's role was at a lower level than that of Mr Reading, whose crime was found to be "below the mid-range". [16] 5. In considering the applicant's subjective circumstances her Honour had regard to the applicant's family and educational background, including that he was then studying for a Masters in Business Administration. She described his work history as "impressive", and detailed the positions the applicant had held, and the responsible nature of them. [17] She referred to his long history of alcohol and illicit drug use, and to his successful completion of the Connect Global programme, which her Honour found constituted "…significant steps [by the applicant] to rehabilitate himself…". [18] Her Honour noted the significant injuries the applicant had sustained in the 2020 motor vehicle crash. 6. The applicant's long history of mental health problems was noted, with her Honour observing: "Dr Lennings' assessment was that the most important diagnoses based on the psychometric assessment performed were polysubstance abuse disorder in partial remission, major depression, and ADHD for which Mr Blakeney takes medication. The offender's difficult […] family background, his mental health problems, and the fact that he was introduced to illicit drug use as a teenager by an adult family member are the factors which reduce his moral culpability, and also mitigate the weight to be given to general and specific deterrence." [19] 1. Having considered the evidence, the sentencing judge concluded that: "[…] the length of sentence I consider to be appropriate in Mr Blakeney's case precludes any consideration of an intensive correction order, which was urged as available by his counsel. This is so, even taking into account the time he has served in custody and quasi-custody, which I will come to shortly. It is regrettable that Mr Blakeney now has to be returned to custody but his strong subjective case cannot be allowed to override the other purpose of sentencing, which include not only the promotion of the offender's rehabilitation, but protection of the community, recognition of the harm done to the community, and ensuring the offender is adequately punished for the offence." [20] 1. A discount on the sentence that would otherwise have been imposed of 25% was allowed, and a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act was made, to allow for a: "[…] variation of the statutory ratio to reflect that the injuries sustained in the car accident, and his more significant mental health issues, [which] will make his time in custody even more onerous than that for Mr Reading." [21] 1. Full credit was allowed to the applicant for the 126 days he had spent on remand prior to bail being granted to him, and her Honour also allowed a period against the time that the applicant had spent in a full-time residential rehabilitation programme. She said: "It is appropriate to give him some credit for the time he spent in rehabilitation. However, it is quite clear that the restrictions do not amount to quasi-custody such that 50% of the period should count as full-time custody. It was apparent from Mrs Blakeney's affidavit at para 49 that he was granted weekend leave at some stage. Further, the facilities are described as "Providing participants with a generous nature filled space offering a swimming pool, tennis courts, basketball half courts, fishing, bike riding, and various other indoor and outdoor activities." The letter received today from Mr Ross Pene, program founder, clarified that from 8 December 2020 to 8 April 2021 there were no visits from family or friends to Mr Blakeney. However, from April 2021 he was granted weekend leave to "undertake medical and legal appointments" and that continued until he left the facility in December 2021." [22] 1. A period of 121 days, being a third of the time spent in rehabilitation, was allowed in recognition of it. The date upon which sentence was taken to have commenced was 15 September 2021. The Application to this Court Ground One: Failure to make a Finding of Prospects of Rehabilitation 1. The applicant contends that, in imposing sentence, her Honour failed to make any finding of the applicant's prospects of rehabilitation, as she was required to do by s 21A(3)(h) of the Crimes (Sentencing Procedure) Act. Whilst the applicant acknowledged that her Honour did make a finding that he was unlikely to reoffend, he argued that this was a different finding to one concluding that he had good prospects of rehabilitation, and the latter had to be specifically determined, separately from the likelihood of reoffending. 2. This ground elevates a particular form of words to the equivalent of a finding with respect to future prospects, and argues that only if the relevant words are used, can it be concluded that the sentencing judge has determined the issue. The argument, which barely rises above the semantic, should be rejected. 3. It must be observed that her Honour imposed sentence ex tempore, a necessary choice if the work of the very busy District Court is not to become so delayed as to itself constitute injustice. The sentencing judge did not have the luxury of an extended period in which to carefully craft and hone the words she used and that must be borne in mind when critiquing the omission of a particular phrase and the supposed failure to address a feature of relevance to sentencing. 4. Attention must be given to what the sentencing judge did say rather than what she did not. Accepting that her Honour did not use the phrase "prospects of rehabilitation" in her remarks, it is clear nevertheless that she carefully considered the applicant's prospects for the future, and mitigated sentence because of her positive assessment of them. In that regard her Honour referred to: 1. The limited nature of the applicant's criminal history; 2. His recent studies towards the conferral of a Masters in Business Administration; 3. The fact that the applicant had successfully completed a 12 month residential rehabilitation programme; 4. That, even after leaving the residential facility, he has returned negative results against regular urinalysis; 5. That he had taken "significant steps to rehabilitate himself"; 6. The applicant's "impressive record of employment" and achievement of promotion; and 7. That the applicant is unlikely to reoffend. 1. When those features highlighted by her Honour are considered in the context of a NPP of 18 months imprisonment against an offence carrying life imprisonment and a SNPP of 25 years, it is clear enough that the sentencing judge gave considerable weight to the positive features that pointed to strong future prospects for a crime free life. 2. The sentencing process is not formulaic; it does not require a sentencing judge to notionally tick off particular features, ensuring that a standard form of words reflects each. What is required is for a sentencing court to consider all of the facts and circumstances of the matter and, applying the law and principles of sentence, determine a sentence that properly reflects both the objective criminality, and the subjective case. That is precisely what the sentencing judge did in the applicant's case. Error is not established by the absence of particular words by which to express part of the determination made by her Honour. 3. I would not grant leave to advance this ground, since it rests upon semantics rather than substance. Ground Two: Error in Failing to Find Remorse 1. The applicant complains that her Honour did not refer to remorse at all, even though she made a finding of remorse with respect to Mr Reading. He points to the expressions of others as to his regret, including the author of the SAR, who referred to the applicant as expressing his shame and embarrassment about the offence; and his mother and Dr Lennings, both of whom made similar observations. 2. Those expressions by others of the applicant's remorse, together with his completion of the Connect Global programme, are relied upon as strong evidence of remorse that was not accepted as such by the sentencing judge in a discrete finding of remorse, a failure that is said to establish error. 3. Two things are notable in addressing this ground. Firstly, in his 145 paragraph affidavit read in his case on sentence the applicant nowhere said that he was remorseful for his crime, or demonstrated any understanding of the scourge that drugs are to society, and the part he played in peddling drugs into the community. Secondly, in neither written nor oral submissions were any arguments advanced before the sentencing court in support of a finding of remorse being made by her Honour. 4. There is a distinction to be drawn between second hand accounts of an offender's remorse and evidence of remorse from an offender. The former is not direct evidence of the latter, and the caution with which sentencing courts should approach hearsay evidence of remorse is well established: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58] – [59]; Imbornone v R [2017] NSWCCA 144 at [57]; Apulu v R [2022] NSWCCA 244 at [141] – [142]. 5. The applicant's successful completion of a rehabilitation programme was an important and compelling feature of his subjective case, and one clearly given considerable ameliorative weight by the sentencing judge, but it was not independent or direct evidence of remorse. It was evidence that the applicant had taken positive and promising steps towards his own recovery from a destructive lifestyle, rather than evidence of acknowledging a wrong done to the community. 6. In this instance there was no direct evidence from the applicant, orally or by his affidavit, of remorse, and no submission was made to her Honour that she should find that the applicant was remorseful. In those circumstances it cannot be seen as an error that her Honour did not make a discrete finding that the applicant was remorseful, in contrast to her conclusion with respect to Mr Reading, who had led evidence of his remorse. 7. Section 21(3)(i) of the Crimes (Sentencing Procedure) Act provides for remorse to be treated as a mitigating feature, but only where the offender has shown remorse by: 1. providing evidence that he or she has accepted responsibility for his or her actions, and 2. acknowledging any injury, loss or damage caused by his or her actions or making reparation for such injury, loss or damage or both. 1. Whilst there was evidence of the assessment of others that the applicant was "ashamed" of and "embarrassed" by the offence, and "regretted" it, those feelings are not necessarily the same as remorse, even if the hearsay evidence of them was to be accepted. True remorse involves more than regret for the impact of a crime (or, more properly, the impact of arrest and discovery) upon oneself and one's family. It involves an understanding of the impact of the crime upon others, in this instance, those in the community adversely affected by drug use or drug related crime: the addicts whose lives have been made miserable by drug use; and the victims of crime committed by those addicts to fund it. There was no evidence of that nature before the sentencing court. In contrast, there was some evidence in the SAR to suggest that the applicant had limited insight into his crime and had not been able to identify the impact of it on the wider community. Accordingly, there was no real basis for her Honour to find that the applicant was remorseful for his crime. 2. Since there was no direct evidence of remorse, that such evidence as there was pointed in different directions, and her Honour was not asked to find the applicant remorseful, she could hardly be in error for making no finding to that effect. 3. I would grant leave to advance this ground, but it should be dismissed. Ground Three: Failure to Take into Account the "Totality" of the Mental Health Diagnoses 1. The applicant relies upon a single sentence from the ex tempore Remarks to argue that the sentencing judge failed to have regard to two of the conditions from which the applicant suffered, and thus was in error. He points to the following sentence as demonstrating that error: "Dr Lennings' assessment was that the most important diagnoses based on the psychometric assessment performed were polysubstance abuse disorder in partial remission, major depression, and ADHD for which Mr Blakeney takes medication". [23] 1. This is contended to constitute error as Dr Lennings referred to two further conditions not included in the impugned sentence, being PTSD and features of an Autism Spectrum Disorder. 2. This Court has frequently rejected an approach which contends for error by taking a single word, or phrase, or sentence out of the context of the whole: Wong v R [2018] NSWCCA 263 at [47]; Gould v Director of Public Prosecutions (Cth) (2018) 273 A Crim R 91; [2018] NSWCCA 109, at [19]. Attention must be given to the whole of what is said by a sentencing judge. 3. It is correct that her Honour did not in that discrete sentence list each of the conditions or symptoms that Dr Lennings had referred to in his report, as opposed to the "most important diagnoses". If one has regard to the whole of what the sentencing judge said, however, it is very clear that not only did her Honour take all aspects of the applicant's mental health into account, she also gave his condition considerable weight, and diminished the sentence imposed upon him because of it, in every way sentencing law and principle permitted. 4. The sentencing judge gave considerable attention in her Remarks to the issue of the applicant's mental health. She referred to aspects of Dr Lennings' report, and set out the applicant's history of mental health problems commencing in childhood, describing his problems as significant. On the basis of the evidence of the applicant's mental ill-health, her Honour found that the applicant's moral culpability for his crime was diminished, that the weight to be given to both specific and general deterrence was reduced, and that the sentence should be mitigated because the applicant would find the custodial environment more onerous than other prisoners without mental health issues. These conclusions clearly led to a significant reduction in sentence for an offence that carries a maximum penalty of life imprisonment. 5. Further, taking the applicant's mental health into account, her Honour made a finding of special circumstances and reduced the NPP to half of the maximum sentence, a reduction of 25% on the usual statutory ratio. 6. In short, there was no benefit on sentence that could have been extended to the applicant to reflect his mental health problems, that was not extended to the applicant. 7. There is no practical utility in advancing this ground, even if it could have been made out, and I would not grant leave to the applicant to advance it. Ground Four: Error in not Allowing 50% of the time spent in rehabilitation towards sentence 1. By this ground the applicant argues that the sentencing judge "took a position" that 50% of the period spent in a full time rehabilitation programme should be credited against sentence, later crediting only one third of the period because of her mistaken understanding of the term "weekend leave". The applicant submits that the weekend leave allowed to the applicant from April 2021 until his discharge from the programme in November 2021 was properly understood as time spent attending to essential medical treatment, and not as leave per se. He argues that he was entitled to credit for half of the period, and there was error in her Honour allowing less than that. 2. The applicant's argument is flawed in two respects and cannot succeed. Her Honour did not "take a position" suggesting that she would allow credit of 50% of the relevant period; and nor did she lessen that percentage because she misunderstood the nature of weekend leave. 3. The issue of credit for time spent in a residential facility was discussed on 8 April 2022 between her Honour and the legal representatives then appearing, with the sentencing judge suggesting that, if an allowance of 50% of the period was to be made, "some further information about the nature of the residential programme" should be provided to the court. Counsel for the applicant undertook to provide that evidence on the next occasion. The sentencing judge indicated to the Crown: "Depending on the nature of the rehabilitation programme Ms Crown, it may well be that Mr Blakeney is entitled to, say, 50% of that time which I see wasn't quite a year." [24] 1. She later observed in discussion with the Bar Table that there could "possibly" be some allowance made for quasi-custody, even if it was not at the rate of 50%. No firm decision was made or stated by her Honour, that being dependent upon the evidence yet to be placed before the Court. 2. The evidence that was tendered to the sentencing court on 20 May 2022 as Exhibits 3 and 4 gave details of the nature of the facilities provided by Global Connect, the conditions of residence, and the precise period in which the applicant had been able to leave the facility. That evidence established that the applicant had entered the programme on 4 December 2020. Until 8 April 2021 he was only permitted to leave for medical and legal appointments. After 8 April 2021 he was allowed to leave the facility each Saturday morning, returning to it by 4pm the next day. This leave was granted to facilitate the applicant's attendance upon medical specialists and lawyers in Sydney. 3. When at the Connect Global premises, which was situated in "tranquil bushland" on the water at Port Stephens, the applicant had access to facilities including a swimming pool, tennis courts and fishing, as noted above at [23]. 4. In assessing that evidence, her Honour did not, as is contended by the applicant, reduce the time credited against sentence from 50% to 30% because of an incorrect understanding of the weekend leave that had been granted to allow the applicant to attend important appointments. It is clear from what she said in her Remarks that her Honour assessed the value of the "quasi-custody" to which the applicant had been subjected during the residential programme as deserving of credit for 30% of the period, because of the nature of the facility, and the extended period of part-time leave from it that the applicant had had access to. That approach is an entirely legitimate one, consistent with authority. 5. It was clear on the evidence that there was very little about the applicant's 11 months at Connect Global that was custodial in nature. His ability to leave the premises was restricted between December 2020 and April 2021, but the conditions in which he lived were hardly spartan or harsh. From early April 2021 until the applicant left the facility on 1 November 2021 the applicant was absent from it each weekend. Whilst the principal purpose of the weekend leave was to enable him to attend medical and other important appointments, that does not detract from the fact that the applicant was able to go home and see and socialise with family and friends each weekend. His bail conditions did not impose any weekend restrictions upon him. 6. The fact that an offender was required to comply with conditions of bail that restricted his or her liberty in some way prior to sentence is not ordinarily a feature to be considered in determining the sentence to be imposed, as Price J observed in R v Quinlan (2021) 293 A Crim R 253; [2021] NSWCCA 284, at [87]: "Section 20A of the Bail Act 2013 (NSW) provides the general rules for the imposition of bail conditions to address identified bail concerns. Bail conditions imposed in accordance with s 20A will not ordinarily be considered to be "quasi-custody" so as to justify a lesser sentence or the backdating of a sentence as the condition(s) imposed will ordinarily be reasonably necessary to address a bail concern (s 20A(2)(a)), and reasonable and proportionate to the offence (s 20A(2)(b)), and appropriate to the bail concern identified (s 20A(2)(c)), and no more onerous than necessary to address the bail concern identified (s 20A(2)(d)), and reasonably practicable for the accused person to comply with the condition (s 20A(2)(e)). Most bail conditions restrict a person's liberty in some way". 1. A sentencing court can take into account conditions of bail imposed upon an offender where those conditions are harsh or restrictive, but there is no set "rate" or percentage at which an allowance is to be made for conditions of quasi-custody. It is a discretionary matter for the sentencing judge and is dependent upon the nature of the conditions, as stated by Garling J in La v R [2021] NSWCCA 136, at [43]: "A sentencing court is entitled to take into account any conditions of bail granted to an offender awaiting sentence where those conditions may be particularly harsh or restrictive. Such terms are often referred to as "quasi-custody". Prior to a court taking into account conditions of quasi-custody as a basis for reducing a sentence, or commencing a sentence from an earlier date than it otherwise would have, there has to be an evidentiary foundation to establish the nature, kind and effect of any restrictions: see Bonett v R [2013] NSWCCA 234 at [50] […]". 1. Whether the applicant's bail conditions amounted to quasi-custody and, if so, whether and to what extent an allowance should be made in imposing sentence in recognition of it were discretionary matters for her Honour. On the evidence, there is no basis to conclude that her Honour mistook the facts concerning the conditions of the applicant's residence at Connect Global in any way. The assessment she made allowing the applicant credit for 30% of the time he had spent there was well open to her. Indeed, bearing in mind that the applicant's successful completion of the rehabilitation programme at Connect Global was given considerable weight in assessing the strength of the applicant's subjective case, the credit afforded him for time spent in the facility may be regarded as generous. 2. Since this proposed ground appears to rest upon a mistaken understanding of both what the sentencing judge had said in discussion about a possible allowance for quasi-custody, and the law on this aspect of the matter, I would not grant leave to advance it. Conclusion 1. For these reasons I propose the following orders: 1. Refuse leave to advance grounds 1, 3 and 4; 2. Otherwise grant leave to appeal; 3. Dismiss the appeal. ********** Endnotes 1. Other evidence established that the applicant was studying towards his Masters. It had not been conferred. 2. AB103 3. AB103-104 4. AB108 5. AB110 6. AB114 7. AB128, [125] 8. AB136, [44] 9. AB138, [59] 10. AB143, [13] 11. AB142, [7] 12. AB148, [34] 13. AB148, [36] 14. AB150 15. AB153 16. AB21 17. AB25 18. AB27 19. AB26-27 20. AB28-29 21. AB29 22. AB29-30 23. AB 26-27 24. AB53 [T20:7-9]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022