Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Zuffo v R [2017] NSWCCA 187 Hearing dates: 19 July 2017 Date of orders: 02 August 2017 Decision date: 02 August 2017 Before: Hoeben CJ at CL at [1]; Price J at [2]; Adamson J at [91] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – one count of supply of not less than commercial quantity of MDMA and one count of supplying MDMA on ongoing basis – whether judge failed to make a determination as to likelihood of re-offending – difference between prospects of rehabilitation and unlikelihood of re-offending considered – whether error in failing to apply sentencing principles applicable to youthful offenders – whether error in failing to consider applicant's mental condition – whether lesser sentence warranted Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 21A(3)(g), 21A(3)(h), 21A(3)(i) Drug Misuse and Trafficking Act 1985, ss 25A(1), 25(2) Cases Cited: Director Of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Jung v R [2017] NSWCCA 24 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lam v R [2015] NSWCCA 143 Peiris v R [2014] NSWCCA 58 R v Ha [2004] NSWCCA 386 R v M.A.K.; R v M.S.K. (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Pham [2005] NSWCCA 94 R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225 RCW v R (No 2) [2014] NSWCCA 190 Scott v R [2010] NSWCCA 103 Stoeski v R [2014] NSWCCA 161 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Blake Zuffo (Applicant) Regina (Respondent) Representation: Counsel: Mr M. Ramage QC (Applicant) Ms T. Smith (Respondent) Solicitors: Jeffreys Lawyers (Applicant) Mr C. Hyland – Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/00315189 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 19 October 2016 Before: Delaney ADCJ File Number(s): 2013/00315189 Judgment 1. HOEBEN CJ at CL: I agree with Price J and the order which he proposes. I also agree with the additional reasons of Adamson J. In particular, I agree with her Honour's observation that little weight will normally be given to an opinion expressed by a judge in an exchange with counsel in the course of sentence proceedings. 2. PRICE J: Blake Zuffo ("the applicant") seeks leave to appeal against the sentence imposed upon him by Delaney ADCJ ("the judge") in the District Court at Sydney on 19 October 2016 for one count of supply of not less than the commercial quantity of a prohibited drug contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW) ("DMT Act") (count 1) and one count of supplying a prohibited drug on an ongoing basis contrary to s 25A(1) DMT Act (count 2). 3. At the applicant's request, a further offence of supplying a prohibited drug contrary to s 25(1) DMT Act was taken into account by the judge in the sentence he imposed for count 1. 4. The prohibited drug in each count and on the Form 1 was 3,4 methylenedioxy-methylamphetamine ("MDMA"). At the time of the commission of the offences, the commercial quantity of MDMA was 0.125kg. 5. The maximum penalty for the supply of not less than the commercial quantity of MDMA is 20 years imprisonment and/or a fine of $385,000. A standard non-parole period of 10 years has been prescribed. 6. The maximum penalty for the offence of supplying MDMA on an ongoing basis is 20 years imprisonment and/or a fine of $385,000. There is no standard non-parole period. 7. The judge allowed a 10 per cent discount for the utilitarian value of the plea of guilty. His Honour found special circumstances being the applicant's need for help to reintegrate into society upon release and reduced the statutory ratio of 75 per cent between the non-parole period and the total term to 52.3 per cent. 8. The judge imposed the following sentences: Count 1: (including Form 1 offence): 5 years imprisonment with a non-parole period of two years 6 months commencing on 6 January 2017. Count 2: a fixed term of 18 months imprisonment commencing on 6 October 2016. 1. As a result of partial accumulation, the overall effective sentence of imprisonment is 5 years 3 months with a non-parole period of 2 years 9 months commencing on 6 October 2016 and expiring on 5 July 2019 with a balance of term of 2 years 6 months expiring on 5 January 2022. The Notice of Appeal 1. The Notice of Appeal identifies five grounds: "Ground 1: The sentencing judge failed to make a determination as to likelihood of re-offending; Ground 2: The sentencing judge erred in failing to apply the appropriate sentencing principles for youthful offenders; Ground 3: The sentencing judge erred in failing to give any weight to rehabilitation; Ground 4: The sentencing judge erred in failing to make any allowance for or give any consideration to the applicant's mental condition; Ground 5: Manifest excess." Facts 1. A statement of agreed facts was tendered which the judge summarised in his sentencing remarks. Shortly stated, the agreed facts are: "[Count 1]:…Between 11:38am and 5:08pm on 23 May 2013, the [applicant] agreed to supply MDMA to Christopher McCowen. The total amount supplied was 1,040 pills with an estimated value of $12,480, and an estimated weight of 260 grams. McCowen had $11,000 ready to pay the [applicant], and was awaiting further moneys from a third party. The pills supplied to McCowen were broken and of poor quality. The [applicant] arranged to take some of these back. [Form 1 offence]:…About 6:02pm on 6 June 2013, the [applicant] agreed to supply 400 pills of MDMA to Benjamin Collins. The estimated value of the sale was $4,800 and estimated weight is 100 grams. [Count 2]:…Between 22 May 2013 and 14 June 2013, the [applicant] supplied MDMA to multiple people on four separate occasions. The total amount of MDMA supplied was 670 pills, with an estimated value of $8,040 and an estimated weight of 167.5 grams." 1. Police arrested the applicant on 19 October 2013. The applicant's subjective case 1. The applicant appeared before the judge on 17 August 2016. He gave evidence on that day and written material was tendered on his behalf. Included in the tender was a psychological assessment report from Ms Sandra Coetzee dated 15 June 2016 and a psychological report from Mr Phil Gorrell dated 5 August 2016. 2. The applicant was born on 23 December 1990 and at the time of the offences was 22 years old. Ms Coetzee's report 1. Ms Sandra Coetzee is a clinical psychologist. Before compiling her report, Ms Coetzee assessed the applicant, which included a clinical interview and psychometric assessment. Following the initial assessment, the applicant had three sessions with Ms Coetzee to assist with his stress, depression and anxiety. 2. The applicant's background is provided in the report. In summary, the applicant grew up in Manly, the eldest of three children and described his family as being "supportive and stable". 3. The applicant told Ms Coetzee that school was difficult for him as he had learning difficulties and was placed in a special learning class. This contributed to feelings of low self-esteem and lack of self-worth. He felt different, not good enough and did not fit in with his peers. This was further exacerbated by significant bullying at school. The applicant stated that he was continually teased and bullied because of having "big ears". As a consequence, he was defensive and experienced conflict with others at school. 4. He left school after completing Year 10 and began an apprenticeship as a cabinet maker, which he did not complete. The applicant commenced working in his father's rendering business in 2009. The applicant told Ms Coetzee that he attended work on a regular basis but towards the end noted that his performance was deteriorating due to his drug-use. 5. Ms Coetzee reported that after his arrest in 2013, the applicant stopped taking drugs, his performance resumed to his usual level of functioning and he continued to work with his father until 2015. He had undergone regular drug testing to ensure that he remained drug-free. He stated that he began boxing, gym and exercise as a means of improving his physical and psychological well-being. At the end of 2015, the applicant opened an industrial cleaning business with a friend and was working hard to develop the company, which was doing well. 6. The applicant told Ms Coetzee that he did not partake in any drug-taking during his schooling. He stated that after school at 18 years of age, he was invited to a party where he was offered drugs. He felt, for the first time, accepted and liked by his peers, self-confident and "cool". Ms Coetzee reported that the applicant continued taking drugs as a means of heightening his self-confidence and in feeling good about himself. After some time, despite holding down a regular job with his father, the applicant was unable to support his drug habit with his salary alone and began to deal drugs. The applicant acknowledged that during this time he was young, irresponsible and immature. He had little thought for his future and was only interested in having fun, fitting in with his peers and socialising. 7. Ms Coetzee conducted a Depression Anxiety Stress Scale test, commonly referred to as 'DASS 21', which revealed that the applicant had moderate depression, severe anxiety and moderate stress. As a consequence, she considered that he required further psychological treatment. 8. Amongst her conclusions, Ms Coetzee reported that the applicant presented as a well-mannered and mature man who was remorseful about his prior drug-taking behaviour and was aware of the negative and harmful effects it had on his life, family, girlfriend and society in general. Ms Coetzee opined that as a consequence of being bullied at school and having learning difficulties, the applicant appeared "to have suffered from feelings of inadequacy, low self-esteem, a lack of confidence and feeling isolated and not part of his peer group". (Ex 2, p 5). Mr Gorrell's report 1. The applicant was referred by his solicitors to Mr Gorrell, a consultant psychologist. Mr Gorrell considered that the applicant "currently does not suffer any major psychiatric/psychological conditions" (Ex 1, p 8). He did, however, show signs of experiencing anxiety, which pertained to his court appearance. The psychologist went on to state (Ex 1, p 8–9): "The circumstances precipitating Mr Zuffo's offences are most unusual for: • At school he was significantly bullied by others and such led to him being socially isolated; having no confidence in himself; doing academically poorly; considering himself not to be worthwhile; hating school; and leaving school at the earliest possible opportunity to avoid the constant bullying. • From that which Mr Zuffo described of his schooling, at school and thereafter, he was suffering from Major Depressive Disorder. • He did not share the extent of his problems with his parents. • He just suffered in isolation. • He desperately sought to be accepted by his peers. • Prior to the age of twenty-one years, he had no involvement with illicit substances. • His involvement with illicit substances occurred in the context of seeking acceptance from others, and gaining at twenty-one years of age, a rare opportunity of attending a party with those who had bullied him at school. • Those at the party were taking illicit substances. • He took an Ecstacy tablet at that party because he wanted to be accepted by those peers and the doing of so, superficially achieved the acceptance he sought; and later led to him seeking to enhance that acceptance by being the friend able to supply illicit substances. • In the context of that he became addicted to those substances. • He was arrested. Mr Dario Zuffo told me that prior to his son's arrest, his son was most immature; and that would be consistent with the characteristics of a young man suffering a Major Depressive Disorder whereby self-worth and a lack of self-esteem was prominent. Depression affects the sufferer's cognitive functioning on a daily basis and will negatively affect their judgement. In being addicted to illicit substances, and suffering depression, Mr Zuffo at the time of his arrest would have lacked the ability to control his emotions sufficiently to allow him to make reasoned and considered judgements." 1. Mr Gorrell stated that the applicant was a pleasant young man who understood the seriousness of his offences and had vowed to never again be involved at any level with illicit substances. Since being arrested, he was leading a well-balanced life, had realistic goals and directions, had a good work ethic and was developing a potentially highly successful cleaning business. He was receiving good and positive support from his parents. Mr Gorrell opined that "[the applicant] is a man who has learnt significantly from his offence both about drugs and about himself; and as such I would be highly surprised if he offends again" (Ex 1, p 11). The applicant's evidence 1. During the applicant's evidence, he confirmed that his drug taking commenced when he was 18 years old and not when he was 21 years old. He said that he had been bullied at school because of his big ears. 2. The person who told him to take drugs at the party was one of the bullies at school. When he was 18, he paid for the drugs with his work money. He said that he was about 21 years old when he first started distributing drugs. When asked how he was able to obtain these drugs, the applicant said (Tcpt, 17 August 2016, p 6): "…I, I was just given the drugs for free, so all the money that I got from those drugs I had to give it back to them." 1. The applicant gave evidence that whilst he was in gaol, he realised that he had caused harm to others so that made him feel really sad about what he had done to the community. His rehabilitation had been going on for about two and a half years. He had been boxing with a trainer twice a week, signed up to the gym and started 'CrossFit' in the morning. He commenced seeing Ms Coetzee about two months ago and intended to continue seeing her. The applicant said that he started urine testing about three months ago. 2. Drug analysis certificates (Ex 10) were tendered which demonstrated that over the period of testing, the applicant's urine tested negative for drugs. 3. In a letter to the judge (Ex 3) the applicant stated that he understood the seriousness of the charges and apologised to the community, the court, his family and friends "for having to deal with this situation". He told the judge of the efforts that he had made to "re-own his life" and "swear on the Holy Bible" that he would never re-offend. 4. Mr Dario Zuffo, the applicant's father, in a letter to the judge (Ex 4), stated that towards the end of 2012 and during most of 2013, his son was very unreliable and a difficult employee. Mr Zuffo and his wife knew that their son was unhappy and troubled but did not realise then that it was due to drug-use. Mr Zuffo stated (Ex 4, p 1): "Now I think back, it was so obvious. We put it down to the effects of his bullying at school and the emotional social isolation that he felt because of it." 1. Mr Zuffo described how the applicant had grown and learnt from his mistakes. He had become a kind, loving and caring young man who had started his own cleaning company with a long-time family friend. Mr Zuffo stated that his family could see how "extremely remorseful" the applicant was for what he had done. He had expressed regret for his addiction to drugs and for others suffering from his behaviour. 2. In a letter to the judge (Ex 6), Ms Olivia Hamill, the applicant's girlfriend, stated that she had noticed a dramatic change for the better in the applicant. He was a changed man, a calm, goal orientated man who was sorry and ashamed for what he had done. Documents relating to the applicant's cleaning business were included in the tendered material. 3. The applicant's prior criminal history disclosed that on 13 November 2011, he had been placed on two s 10 bonds for 12 months for the possession of a prohibited drug and goods in custody. On 3 March 2013, he had been convicted for negligent driving (occasioning grievous bodily harm) and placed on a s 9 bond for 24 months. Some findings by the judge 1. The judge said that whilst he was satisfied that the extent of the ongoing supply (count 2) was less than the mid-range of objective seriousness, it was still a serious matter well above low-range, based on the number of pills supplied, the ease with which they were being supplied, the quantity and the amount of money involved. It showed, his Honour said, that the applicant was capable of obtaining, disseminating and facilitating the supply of those drugs at short notice when requested. 2. As to count 1, the judge found that the offence was somewhat less than the mid-range of objective seriousness, "but not by much" (ROS 7). 3. The judge referred to the applicant's evidence, his father's evidence and the favourable character references. His Honour remarked that the applicant had become involved in the drug trade himself, not only for his benefit but for the benefit of others as well. He noted that the applicant had received "drugs and the value of those drugs, as well as money" (ROS 8). His Honour said this was a very serious level of offending. 4. The judge said (ROS 9): "In this case there is nothing in the evidence that I have seen which suggests that there should be any amelioration of the principles of either general or specific deterrence. General deterrence requires the denunciation of the conduct. Specific deterrence requires that some acknowledgement of Mr Zuffo's future should be directed to making sure he does not do it again. I find that he is remorseful. I find that he was, in many ways, otherwise of good character. I find that he has community support. I find that he has family and friends and has substantially rehabilitated. I find that he has let them all down." 1. His Honour went on to find special circumstances and said (ROS 9–10): "I think that after Mr Zuffo is released from custody, he will need some help to reintegrate into society, and as a result I will be making a finding of special circumstances which, as I understand it, the Crown did not oppose in such a finding. It is important also that I recognise that Mr Zuffo is still a very young man. He has a long life hopefully, and it is to be hoped that when he does resume his place in society that he is able to do so in an effective way that will not lead him into the situation where so many that I have seen go in and out of the door for far too long." 1. After sentencing the applicant, the judge said (ROS 12): "Before I conclude my remarks on that, I have taken into account the rehabilitation that he effected between 2013 and today." Ground 1: The sentencing judge failed to make a determination as to likelihood of re-offending Argument 1. The applicant submitted that s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a mandatory mitigating factor to be taken into account in determining the appropriate sentence for an offence is that "the offender is unlikely to re-offend". The applicant contended that the judge made no assessment of the applicant's re-offending and apparently took the view that such an assessment should not or could not be made. 2. In this regard, the applicant pointed to the judge's discussion with the applicant's counsel during the proceedings on sentence, when his Honour said (Tcpt, 17 August 2016, p 18): "As far as recidivism is concerned, that's a matter that can't be determined until after he's released." 1. It was submitted that the judge erred in not making an assessment as to the likelihood of re-offending and that a positive assessment should have been made in his favour that he was unlikely to re-offend having regard, inter alia, to his general good character and work record prior to having become involved with drugs, the lack of any drug offences during the lengthy period on bail; his established partnership with a friend in a legitimate business; the applicant's promise to the judge; and Mr Gorrell's unchallenged assessment that he would be "highly surprised" if the applicant offends again. 2. The Crown pointed to the judge's specific finding that the applicant was "substantially rehabilitated", an issue to which the risk of re-offending was said to be obviously relevant and to the judge's further comments quoted at [37] above. 3. In reference to his Honour's comments during the proceedings on sentence, the Crown submitted that the Court will usually not find an error of principle from exchanges between counsel and the bench. The Crown argued that, in any event, his Honour's statement could be simply viewed as highlighting that the assessment of the likelihood of not re-offending necessarily involved some degree of uncertainty, and whether or not the applicant actually refrains from offending will only be known with time. 4. During argument, in this Court, the applicant submitted that the judge's finding of substantial rehabilitation went to a different issue and that whilst an offender can be rehabilitated; an offender may still have low prospects of re-offending. Consideration 1. Amongst the factors that a sentencing court is obliged to take into account in mitigation of a sentence under s 21A(3) of the Crimes (Sentencing Procedure) Act are: "21A Aggravating, mitigating and other factors in sentencing … (3) Mitigating factors … (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise" 1. Although commonly linked, the concepts are not the same. In R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225, McClellan CJ at CL and Johnson J drew a distinction between the unlikelihood of re-offending and rehabilitation. Their Honours said at [118]–[121]: "[118] Inherent in Mr Duff's account of punishment is the assumption that rehabilitation addresses the moral sensibilities of the offender, not just his or her propensity to reoffend. Indeed, were it otherwise, there would be little to distinguish rehabilitation from specific deterrence, which is separately provided for by s.3A(b) Sentencing Procedure Act. To the extent that moral self-correction and renunciation of one's own wrongdoing are captured by the concept of rehabilitation for which s.3A(d) of the Act provides, it can fairly be said that the present respondents are in need of rehabilitation, notwithstanding that they are unlikely to reoffend. … [120] Although it is common for judges, when considering the subjective characteristics of an offender, to evaluate the prospects of the person reoffending and to express an opinion as to whether the person is unlikely to reoffend, it could never be said that a person who has once offended would never reoffend. Furthermore, a person who has offended will always be in need of the opportunity to establish themselves as a law abiding and productive member of the community. Rehabilitation is a concept which is broader than merely avoiding reoffending. [121] A finding that an offender is not likely to reoffend may often be made not only because of expressions of remorse, but because the fact that the offender has been caught, convicted and punished (which may include extra-curial punishment) will operate to deter the offender from future wrongdoing. Deterrence will operate in respect of an offender even though the offender may not have restructured his or her thinking so that they thereafter consciously determine to re-establish themselves as a positive member of society." 1. Notwithstanding the conceptual difference between the prospects of rehabilitation and the unlikelihood of re-offending, both mitigating factors share much in common. For instance, genuine remorse will be a major consideration in determining whether these mitigating factors exist: R v M.A.K.; R v M.S.K. (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [41]. An assessment that an offender is unlikely to re-offend is commonly linked to a favourable finding that the offender has good prospects of rehabilitation. The need for specific deterrence may be reduced when the sentencing court determines that a person is unlikely to re-offend and has good prospects of rehabilitation. 2. Both the assessment of the offender's future offending behaviour and prospects of rehabilitation are questions of fact to be determined by the sentencing judge. Both are necessarily uncertain as each concept requires a prediction of future conduct: Stoeski v R [2014] NSWCCA 161 at [38]. 3. In the present appeal, the applicant presented a strong subjective case. In the three years since his arrest, all of the evidence pointed to his renunciation of drug-use, his understanding of the great harm to the community at large caused by drug-dealing, and his successful attempts to build a business and restore a close relationship with his family. He had not committed further drug offences. All of these matters contributed to Mr Gorrell's assessment, which was unchallenged, that he would be "highly surprised" if the applicant offends again. 4. The judge was not bound to accept Mr Gorrell's assessment, but his Honour was obliged to make his own assessment as to whether the applicant was unlikely to re-offend. 5. Unfortunately, the judge neither referred to s 21A(3)(g) nor expressly made an assessment of the unlikelihood of re-offending in his sentencing remarks. However, the Crown argued that a favourable assessment by the judge of the applicant's future offending could be inferred from his Honour's finding that the applicant had substantially rehabilitated and from his Honour's remarks that it was hoped that the applicant would resume his place in society. 6. In support of this Ground, the applicant placed some reliance on the judge's remarks during the proceedings on sentence, quoted at [41] above. 7. This Court will not normally find an error of principle from exchanges between a judge and counsel in the course of submissions: R v Pham [2005] NSWCCA 94; RCW v R (No 2) [2014] NSWCCA 190. Although there are occasions in which there is some utility in having regard to statements made by a judge in sentencing proceedings, see for example Peiris v R [2014] NSWCCA 58 at [67], it is unnecessary in this case to do so. 8. In considering the Crown's submission, two matters immediately come to mind. Firstly, his Honour delivered his sentencing remarks some weeks after the proceedings on sentence. The degree of latitude afforded in the scrutiny of sentencing judgments delivered ex tempore is not available in the present circumstances. It is implicit in a reserved judgment that a judge has given consideration to all of the material placed before him. Secondly, the judge made an express finding that there was nothing in the evidence which suggested there should be any amelioration of the principles of either general or specific deterrence (see [37] above). Whilst a favourable assessment of an offender's future offending may not impact upon considerations of general deterrence, it is not uncommon for the sentencing court to reduce the weight given to specific deterrence. Both of these matters suggest that the judge did not make a finding required by s 21A(3)(g). 9. The issue of the unlikelihood of the applicant's re-offending was clearly raised in submissions. The judge reserved his judgment and had ample opportunity to carefully consider all of the matters that were relevant to imposing an appropriate sentence. I am not persuaded by the Crown that a finding required by s 21A(3)(g) can be inferred from his Honour's sentencing remarks. In my respectful opinion, the judge erred in not making an assessment as to whether the applicant was unlikely to re-offend. 10. I would uphold this ground of appeal. Accordingly, it will be necessary that this Court exercises the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The remaining grounds of appeal can be dealt with some brevity. Ground 2: The sentencing judge erred in failing to apply the appropriate sentencing principles for youthful offenders Argument 1. The applicant's complaint is that the judge did not refer in his sentencing remarks to the principles applicable to youthful offenders. Consideration 1. The simple answer to this ground is that the applicant's counsel did not attempt to rely on those principles either in written submissions or oral argument before the judge. 2. This Court has emphasised that appeals do not provide an occasion to revise or reformulate cases before a sentencing judge. Arguments that could have been put, but were not advanced on the plea will not be lightly entertained: Zreika v R [2012] NSWCCA 44 at [79]–[83]. 3. In any event, it is clear that the judge recognised that, at 22 years of age, the applicant was "still a very young man" and took the applicant's youth into account when determining the sentence to be imposed. No miscarriage of justice has been demonstrated. 4. There is no substance in this ground. I would reject it. Ground 3: The sentencing judge erred in failing to give any weight to rehabilitation Argument 1. The complaint made under Ground 3 is that the judge failed to give any weight to rehabilitation. The applicant submitted that whilst the judge mentioned rehabilitation as an important sentencing factor (ROS 9), there is no indication that he gave any weight to that rehabilitation, which he then expressed on the same page as "I find that he has family and friends and has substantially rehabilitated. I find that he has let them all down" (see [37] above). 2. The applicant argued that the judge should have recognised that he was effectively fully rehabilitated and full recognition should have led to a less severe sentence. Consideration 1. The applicant's complaint that the judge failed to give any weight to his rehabilitation is plainly incorrect. His Honour referred to the applicant's evidence and to the psychologists' reports in some detail and his findings included that the applicant was remorseful, and had substantially rehabilitated. 2. His Honour was not obliged to find that the applicant was "fully" rehabilitated. As with any person who has had a serious drug addiction, there remains a degree of uncertainty about predicting the future. It is not without significance that Ms Coetzee, the applicant's treating psychologist, "highly recommended" that the applicant continue psychological treatment. Error has not been demonstrated in his Honour's assessment of the level of the applicant's rehabilitation. 3. There is no substance in this ground. I would reject it. Ground 4: The sentencing judge erred in failing to make any allowance for or give any consideration to the applicant's mental condition Argument 1. The applicant contended that the judge did not take into account Mr Gorrell's opinion that, at the time of the commission of the offences, the applicant was suffering a Major Depressive Disorder. The applicant submitted that his moral culpability had been reduced as a consequence of his mental condition. 2. The Crown submitted that Ms Coetzee made no reference to the applicant ever having suffered a Major Depressive Disorder in the past. Furthermore, the applicant in his evidence did not assert that he was suffering from depression at the time of the offences. The Crown put to the Court that, although the applicant's written submissions referred to a Major Depressive Disorder, no oral submissions were made to the judge as to the application of the principles governing the sentencing of offenders suffering a mental condition and the implications of Mr Gorrell's purported diagnosis. Consideration 1. The mental ill-health of an offender that contributes in a material way to the commission of an offence may reduce an offender's moral culpability and diminish the need for denunciation of the crime: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. 2. In his report, Mr Gorrell expressed the opinion that the applicant was suffering a Major Depressive Disorder at the time of the commission of the offences. The psychologist opined that as a result of the applicant's drug addiction and depression, he would have at the time of his arrest, lacked the ability to control his emotions sufficiently to make reasoned and considered judgements (see [23] above). 3. The Crown did not object to the tender of Mr Gorrell's report during the proceedings on sentence nor was his assessment of a Major Depressive Disorder challenged. 4. Concern has been expressed by this Court where a psychologist, and not a psychiatrist, purports to diagnose the existence of a mental illness: Jung v R [2017] NSWCCA 24 at [41]; Lam v R [2015] NSWCCA 143 at [78]–[82]. However, as no objection was taken by the Crown, Mr Gorrell's opinion of a Major Depressive Disorder formed part of the evidence before the judge. 5. In his sentencing remarks, the judge did not mention Mr Gorrell's assessment of a Major Depressive Disorder at the time of his offending and concentrated his attention upon the psychologist's assessment that the applicant "currently" did not suffer any major psychiatric/psychological condition. When considering Ms Coetzee's report his Honour referred to Ms Coetzee's assessment of the applicant's depression, anxiety and stress and remarked that "these things… are not unusual where people are facing very serious penalties for serious offences" (ROS 4). 6. The lack of consideration in his Honour's sentencing remarks to Mr Gorrell's assessment may have been engendered by the applicant's evidence and by the failure of his counsel to direct his Honour's attention to the issue in oral submissions. Nevertheless, the question had been directly raised in the applicant's written submissions (Ex 9, p 3): "The Court on sentence can take into account the applicant's major depressive state at the time he committed these offences…" 1. In my respectful opinion, the judge erred in failing to give any consideration to Mr Gorrell's opinion that the applicant was suffering from a Major Depressive Disorder at the time he committed the offences. 2. I would uphold this ground of appeal. Ground 5: Manifest excess 1. As it will be necessary to exercise the sentencing discretion afresh, it is unnecessary to decide this ground of appeal. Further evidence 1. Two affidavits have been tendered on re-sentence. The affidavit of the applicant's solicitor annexes a certificate of completion by the applicant of a National WHS General Construction Induction Training Course and an extract of a NSW Department of Corrective Services Case Note reporting that he had been working on a regular basis and had completed all tasks to a satisfactory level. Shortly stated, the applicant's affidavit, sworn on 18 July 2017, recounts the difficulties that he experiences in gaol, the positive steps that he takes to stay out of trouble, the help he gives to other offenders, his desire to work hard and the opportunities for work outside gaol that he gratefully accepts. The applicant confirms that he has not taken illicit drugs since his arrest and his understanding of the harm that drugs can do to others. When referring to his business, the applicant states that it has not been performing very well since he has been unavailable. He is concerned that the business will not survive much longer without two people working in it. Re-sentence? 1. The maximum penalty for count 1 is 20 years imprisonment with a standard non-parole period of 10 years. The maximum penalty for count 2 is 20 years imprisonment. These legislative guideposts are to be borne in mind when considering the appropriate sentences, having regard to the objective circumstances of each offence and the applicant's subjective case. 2. The judge's assessment of the objective seriousness of the offences was not challenged on appeal. In respect of count 1, the applicant supplied 1,040 pills of MDMA with an estimated value of $12,480. As to the offence on the Form 1, the applicant agreed to supply 400 pills of MDMA with an estimated value of $4,800. 3. In respect of the offence of ongoing supply (count 2), the applicant supplied a total of 670 pills of MDMA, with an estimated value of $8,040, to multiple people on four separate occasions. This was done over a period of less than one month. As his Honour said, the applicant's offending showed that he was capable of obtaining, disseminating and facilitating the supply of MDMA at short notice. 4. The amount of the prohibited drugs involved in the applicant's dealing was significant. These are serious offences. 5. I am not persuaded on the balance of probabilities that the applicant was suffering from a Major Depressive Disorder at the time of the commission of the offences. Mr Gorrell's opinion was neither supported by the applicant's evidence nor Ms Coetzee's report. I am not satisfied that the applicant's moral culpability for drug-dealing is to be reduced on account of mental ill-health. 6. As I have previously stated (see [50] above), the applicant presented a strong subjective case. I agree with the judge that the applicant has substantially rehabilitated and I find that he has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act. I am also satisfied that the applicant is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act. The applicant has shown remorse for the offences as he has accepted responsibility for his actions, and acknowledges the harm caused by his drug-dealing: s 21A(3)(i) Crimes (Sentencing Procedure) Act. All of these mitigating factors are to be taken into account in determining the appropriate sentences. 7. Specific deterrence is a consideration of only limited significance as the applicant is unlikely to re-offend. However, I recognise the importance of general deterrence in sentencing for offences such as those of the applicant. This Court has emphasised on many occasions that the need for general deterrence is high in cases involving dealing and supplying prohibited drugs: R v Ha [2004] NSWCCA 386 at [20]; Scott v R [2010] NSWCCA 103. 8. His Honour aptly acknowledged the harm caused to the community by the supply of prohibited drugs when he said (ROS 8): "It is a terrible scourge on our society and you only have to see the young and the effect on them, and the parents trying to struggle with their children affected by methylamphetamines, ice, you name it." 1. The sentencing statistics provided in the applicant's written submissions do not demonstrate that the sentence imposed by the judge was manifestly excessive. The applicant's strong subjective case does not require this Court to reduce the sentence below that which is otherwise appropriate. 2. In the exercise of my own independent discretion, I have concluded that the overall effective sentence imposed by the judge, both in the head sentence of 5 years 3 months and non-parole period of 2 years 9 months, is an appropriate reflection of the totality of the criminality involved in the applicant's offending and his subjective circumstances. No lesser sentence is warranted in law. 3. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 1. ADAMSON J: I have had the benefit of reading in draft the reasons and proposed orders of Price J. I wish to add a few remarks of my own with respect to ground 1. 2. In the present case, the sentencing judge found that the applicant was "substantially rehabilitated". As Price J has said, prospects of rehabilitation are distinct from likelihood of re-offending. So much is clear from the terms of s 21A(3), which differentiate between a finding that "the offender is unlikely to re-offend" (s 21A(3)(g)) and "the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise" (s 21A(3)(h)). Although it does not follow from a finding that an offender is unlikely to re-offend, that the offender has good prospects of rehabilitation, I would have thought that a finding that an offender was "substantially rehabilitated" would incorporate a finding that the offender is unlikely to re-offend. 3. However, as Price J has noted, his Honour considered that it was necessary for the sentence to reflect the need for specific deterrence, as well as general deterrence. It is this aspect of the sentencing judge's reasons, rather than the omission of specific reference to prospects of re-offending, which causes me to question whether the sentencing judge addressed the matters raised in mitigation at the sentence hearing regarding the prospect that the applicant would re-offend. One might ask why specific deterrence would be required if the applicant was regarded as unlikely to re-offend. As the applicant contended that he was unlikely to re-offend, he bore the onus of providing it on the balance of probabilities as it was a matter of mitigation: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). Having regard to the matters raised on behalf of the applicant at the sentence hearing, the sentencing judge was obliged to make a finding whether he was satisfied that the applicant was unlikely to re-offend: s 21A(3)(g). His Honour erred in failing to make a specific finding on that matter. 4. On this basis, I am satisfied that the applicant has made out the first ground. 5. I add for completeness that I do not place any particular store on the exchange between the sentencing judge and counsel at the sentence hearing in which his Honour said: "As far as recidivism is concerned, that's a matter that can't be determined until after he is released." 1. I do not regard his Honour as saying any more than, in effect, "time will tell" whether any prospective assessment of likelihood of re-offending proves to be accurate, which is a truism to which no exception could reasonably be taken. Further, it would be unfortunate if sentencing judges were deterred from expressing preliminary observations or impressions in the course of a hearing, by the prospect that this Court will, on an application for leave to appeal against sentence, construe such statements as conclusions. 2. Save for the slight difference in emphasis in our views with respect to ground 1 (but not as to the conclusion), I agree with the reasons of Price J, including as to re-sentence, and with the orders which his Honour proposes. ********** Amendments 07 August 2017 - 7 August 2017 – name change of solicitor for applicant 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: 07 August 2017