Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Connor v R [2017] NSWCCA 300 Hearing dates: 6 October 2017 Decision date: 08 December 2017 Before: Macfarlan JA at [1]; Fullerton J at [60]; Fagan J at [61] Decision: (1) Grant the applicant leave to appeal against his convictions and sentence. (2) Dismiss the appeal. Catchwords: CRIME – appeal against conviction after judge alone trial – charges relating to possession of prohibited weapons and a firearm – whether verdict unreasonable or cannot be supported by the evidence – whether applicant had possession of the relevant items – whether items were intended to be used in a significant criminal enterprise namely a "rip off" – whether trial judge erred in his use of expert evidence – relevance of applicant giving in evidence an implausible explanation for his possession of the weapons and firearm SENTENCING – appeal against sentence – relevant factors on sentencing – Form 1 offences – Form 1 did not attribute each additional charge to a principal offence – unsigned Crown sentence summary did attribute each Form 1 offence to a principal offence – Crown sentence summary agreed to by accused – s 32(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied SENTENCING – appeal against sentence – subjective considerations on sentence – whether judge did not properly take into account applicant's mental condition as reducing moral culpability and significance of general deterrence – whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW), s 66(1)(b) Weapons Prohibition Act 1988 (NSW), s 7(1) Cases Cited: Bichar v R [2006] NSWCCA 1 Kuhl v Zurich Financial Services Australia (2011) 243 CLR 361; [2011] HCA 11 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Stephen Barry Williams (2005) 156 A Crim R 225; [2005] NSWCCA 355 R v SY [2003] NSWCCA 291 R v Todorovic [2008] NSWCCA 49 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Turner v R [2011] NSWCCA 189 Category: Principal judgment Parties: David O'Connor (Applicant) Regina (Respondent) Representation: Counsel: L Fernandez (Applicant) F Veltro (Respondent) Solicitors: Macedone Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/203036; 2014/271423 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 7 October 2016 Before: Lakatos DCJ File Number(s): 2014/203036; 2014/271423 Judgment 1. MACFARLAN JA: Between 30 May 2016 and 8 June 2016 the applicant was tried on an Indictment alleging the following offences: Count 1: Possession of a prohibited weapon, namely a body armour vest designed for anti-ballistics purposes, without being authorised by a permit; Section 7(1) of the Weapons Prohibition Act 1988 (NSW). Count 2: Possession of a prohibited weapon, namely anti-personnel spray, without being authorised by a permit; Section 7(1) of the Weapons Prohibition Act 1988 (NSW). Count 3: Possession of a pistol, namely a 9 mm Parabellum calibre Glock Model, self-loading pistol, without being authorised by a permit; Section 7(1) of the Firearms Act 1996 (NSW). Count 4: Possession of a defaced firearm, namely, a 9 mm Parabellum calibre Glock Model 17, self-loading pistol, without being authorised by the Commissioner of Police; Section 66(1)(b) of the Firearms Act 1996 (NSW). 1. The applicant pleaded not guilty to each of the charges, which related to items found in a house that he occupied in Belfield. It was common ground at the trial that the applicant was involved in the supply of drugs. The Crown alleged that the items the subject of the charges were to be used by the applicant either in the drug supply business generally, or specifically in respect of a planned "rip off" in which the applicant and others would impersonate police officers and steal drugs and/or money from another drug supplier. 2. The applicant was tried at a judge alone trial before Lakatos DCJ pursuant to s 132A of the Criminal Procedure Act 1986 (NSW). On 8 June 2016 his Honour delivered a judgment finding the applicant guilty of each of the offences charged. 3. By a judgment of 7 October 2016 his Honour sentenced the applicant in respect of these offences, as well as other offences to which the applicant had pleaded guilty. These further offences comprised one count of doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW), 11 counts of supply various drugs contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and 1 count of participating in a criminal group contrary to s 93T(1) of the Crimes Act. The applicant also requested that his Honour take into account a further 11 counts of supply drugs on a Form 1. 4. In respect of all of these offences, his Honour imposed an aggregate sentence of 7 years and 6 months, with a non-parole period of 5 years and 3 months. His Honour took into account the Form 1 offences. 5. The applicant seeks leave to appeal to this Court on the following grounds. The first relates to his conviction of the offences to which he pleaded not guilty, and the second and third grounds relate to the sentence that was imposed upon him: Ground 1: The trial judge's verdict is unreasonable or cannot be supported having regard to the evidence. Ground 2: The trial judge erred in taking into account offences on the Form 1 when they had not been attributed to any principal offence. Ground 3: The sentence imposed is manifestly excessive. The evidence at the trial 1. The Crown led evidence of the execution of a search warrant at the applicant's residence in Belfield. Items found in the bedroom occupied by the applicant and his girlfriend included the body armour vest and anti-personnel spray the subjects of Counts 1 and 2, a police issue torch, a LED light bar, a police name badge and a senior constable's police shirt. In the bedroom occupied by the applicant's father, police found the Glock pistol the subject of Counts 3 and 4 and a magazine containing 6 bullets. In a third, apparently unoccupied, bedroom, police located 2 locked safes and a pair of blue cargo pants that resembled police issue trousers. The applicant opened both safes, one of which contained two pistol trigger locks, together with keys. 2. It was common ground that the applicant engaged in a drug supply business with his cousins, Benjamin and Joshua Goddard, and Joshua Goddard's girlfriend, Simone Bauber. The drug supplies that were effected included supplies to inmates in Correctional Centres at which Joshua Goddard was incarcerated. Prior to the trial, the applicant had pleaded guilty to a number of offences of supplying drugs to Goddard in June 2014 (see above at [4]). 3. The Crown also led evidence of the execution of a search warrant on 9 and 10 July 2014 at premises in Miranda rented by Goddard, who was in custody at the time of the search. Items found during the search included various drugs and drug related equipment, knuckledusters, and gun related equipment which included rifle rounds and shot gun shells. 4. The Crown also led evidence of numerous intercepts of telephone conversations and SMS messages between the applicant and others from 28 May 2014 to 9 July 2014. The intercepted conversations were lengthy. For present purposes it is sufficient to refer to the principal statements made in the course of conversations to which the applicant was a party, and which led the trial judge to conclude that 1) the applicant and others were planning a significant criminal enterprise over and above the normal activities of the drug supply business in which they were engaged, and 2) in the course of this enterprise the applicant and others were planning to use the items the subject of the charges to which the applicant pleaded not guilty. These statements were as follows: * On 29 June 2014, in a phone call between the applicant and Joshua Goddard, there were references to a "mission" and a "big mission" and to a motor vehicle being hired for one day. Later the same day a person called Richie said to the applicant "tomorrow's the big day". * On 30 June 2014 an unidentified male asked the applicant whether "it was happening tonight". Later the same day, Richie told the applicant that "it could happen tonight", and made reference to renting the car for another day. * On the evening of 30 June the applicant had a conversation with Richie in which he made reference to the "snatgay" and asked Richie "how are we going to get it?". The applicant conceded that "snatgay" is a slang term for a gun, and the judge inferred that this conversation was "about a gun and about Richie providing it to the accused to carry out an enterprise in respect of which everything was almost ready" (Judgment [38]). * At about 10:42 pm on the night of 30 June the applicant informed Richie that "we're just dropping everything back off". * On 1 July 2014 the applicant told Goddard that he was "just waiting on a call from Richie", that he was "still on a mission" and that it was a "big one". Later that day, the applicant told an unidentified male that he was waiting on Richie to decide whether it was to be "today or tomorrow". Later again that day, the applicant said to a male "it's not going to happen tonight". * Later on 1 July 2014 the "rip call", to which I refer in [11] below, took place. * On 2 July 2014 Richie said to the applicant "hopefully it's tonight". * On 4 July 2014 Richie and the applicant had conversations about renting the car for one more day. Later that day the applicant had a conversation with a person identified as Steven Noldt, in which the applicant stated that he was "about to come and meet you and grab the thing off you". The judge inferred that "'the thing' potentially refers to any item which might be involved in the rip-off including police paraphernalia, lights or weapons" (Judgment [60]). * On 7 July 2014 the applicant told Joshua Goddard that "it's going through tomorrow" and asked for money to pay for a rental car. Later, the applicant told two unidentified males that he had spoken to Richie and "he's going down tomorrow". * On 4 July 2014 Goddard and Richie had a conversation in which Richie stated "we're going to make an earn", a "mad earn". On 9 July 2014, when Goddard told Richie of the applicant's arrest, Richie said "I just lost on two hundred grand for us". The applicant was not a party to these calls. 1. The trial judge set out as follows the relevant part of the "rip call" of 1 July 2014: "Accused: ' … It was just about, um, what happens if we play with paper? What happens to the paper if we play with it too much? Adrian: It scrunches up. Accused: no, no, no, worse than that. Adrian: It catches fire. Accused: No, no, no, less than that. What happens if you play with paper? Adrian: What normal paper? Accused: yeah, yeah. What happens to the paper … Adrian: I don't fucking know … Accused: … if you play with it too much? Adrian: Uh. Accused: It rips. Adrian: oh, okay, Oh, them ones? Accused: yeah remember how Chris done it with the car and lights and fucking Christmas trees and everything else. Adrian: Mm, yeah. Maybe you better come and talk to me later on (inaudible). … 'Cause playing with paper and Christmas trees, I don't know … it's a fire hazard." 1. Detective Sergeant Matt Crematy gave evidence of his experience of the use of the term "rip" by persons associated with prohibited drugs. His principal evidence-in-chief was in the following terms: "The term 'rip' is a common term referred to, a 'rip off' or a theft of either drugs, money or both. The term is not exclusively used by persons in association with only drugs and money, it could relate to other clandestine materials or objects, such as stolen property, weapons and the like. A rip can occur in a variety of ways by persons known or unknown to the subject of the theft. … In relation to the supplier of the prohibited drug, the risk of a rip is subsequently [sic] higher than a customer. The reason behind this can be attributed to the value of the items in their possession, i.e., money and drugs. The supplier of prohibited drugs may be targeted for a rip by associates or unknown persons. These persons could be acting on behalf of others or themselves." 1. Detective Crematy indicated that, although he had obtained a general familiarity with the telephone intercepts in evidence in the present case, he had not "listened specifically to any calls … in relation to rip". 2. In cross-examination, the applicant's counsel however asked Detective Crematy to read a transcript of the "rip call". The following exchange then occurred: Q. … Based on your experience and expertise in this particular area, are those two for certain talking about what you explained in helpful terms yesterday when people are talking about a rip. Does this fit into your understanding of where that word is used in relation to drug dealing? A. In isolation the call – I'm obviously reviewing one call in isolation. Q. I appreciate that. A. The conversation is consistent with one that's clandestine in its nature and there are parts – the term 'paper' to me is also used in— Q. What does that signify? A. Usually refers to money. So when you – in terms if you ask for paper you'll hear, 'Do you have the paperwork ready? Have you got paperwork on you?' – stuff like that. It's usually one person asking the other, 'Do you have the money?' because they don't want to use the term 'money' in a phone call obviously to protect the nature of the call. The only problem is that it's – like it's a common term that's used. It's – they might as well just say the word 'money'. And, 'to play with it', in the contents of this, it's really – and obviously what we hear – to me they're – they're talking about something that's happened to money, either loss or theft or money. In regard to – and that would make the term 'rip' fit within this conversation, the contents of this conversation. It rips because he's – he's trying to say that someone has been ripped. It doesn't – like I couldn't say if they did it or someone – they've had it done to themselves in isolation. It's too – it's too hard to make that— Q. It's pretty wide. A. Well, it would be too broad a stroke for my – based on that – to say that one party ripped the other party and these are the…(not transcribable).. Q. Yes. A. To me that – on that one call I'd need to know more background of each person." 1. His re-examination included the following exchange: "Q. So at the top there voice 2 says, 'Oh, okay, oh, them ones?' and then voice 1 says, 'Yeah, remember how Chris done it with a car and lights and fuckin' Christmas trees and everything else?' A. That's correct. Q. Did you consider that in whatever view you formed about the call? A. Yes, but as the call is in isolation and it's – it's the problem looking at one call by itself. That could be them describing how a rip was done on them, to try and explain it or how they've done a rip in the past, and that's what I'm saying, I can't on one call in isolation say that this party in this are talking about actually committing the rip or being subject to a rip. Q. Yes, well, I suppose the first part is in your opinion does the part of the conversation, 'Yeah, remember how Chris done it with the car and lights and fuckin' Christmas trees and everything else,' is that something to do with a description of a rip? A. Possibly, yep. Q. Possibly. And in terms of that description what is it about that description that's consistent with a rip? A. To me that could be them talking about either – it could be simulating use of pretending to be police. Q. And why do you say that? A. Lights and sirens and, all these Christmas trees, making a big song and dance." 1. The applicant gave evidence acknowledging his involvement in the supply of illicit drugs, but denying any knowledge of the body armour vest, anti-personnel spray, Glock pistol and the police paraphernalia. He denied any intention to impersonate police. 2. He said that the purpose of obtaining the rental car was to supply drugs and that the word "mission" (as used in the intercepted conversations) did not refer to a drug rip off. He attempted to explain the "rip call" as follows: "A. I believe I was speaking to Adrian and I made reference to trees and that, and that the way that you got marijuana into a gaol was you had to avoid the dogs, so to avoid the dogs you need to wrap it in this special paper which has eucalyptus DD on it, and that needs to be prepared a couple of days prior, and I've obviously ripped that paper and now I can't get the weed into gaol so I need my friend to help me with more paper. Q. Adrian needed to discuss that with you, did he? A. Well, I needed to discuss it with him, to get more paper. Q. It wasn't that you were talking about a friend who had done a rip with a police car and police lights? A. No, I was making reference to Chris, who prepared the paper, and then you got to let it dry out, because otherwise, you can't put marijuana into a wet piece of paper that has been soaking in WD. So you then get ultraviolet lights which will dry it; once the paper is dried, you wrap the marijuana in it, you squash it down into a little balloon, put it in the balloon; then you conceal the balloon, obviously." 1. When asked about the "mission" referred to in the intercepts, the applicant's response was as follows: "CROWN PROSECUTOR Q. So in this particular instance, what do you say the big mission was? A. It could have been a number of things. Ritchie sent us on a lot – like, a lot of little things to do for him. Q. It was a mission for Ritchie? A. Yeah, like – it appears that way, yes. Q. What were the other missions that Ritchie sent you on? A. Okay. So Ritchie would be like, 'The boys are all coming over tonight. You need to go to the shop. Get all the boys Vs bro, get all the boys Vs,' and by a lot of boys I'm talking 20, 30-odd boys. It's a lot of Vs to carry back. You know, I would have to go to Woolworths, do all this stuff for him. 'Get stuff for barbeques. Get stuff for this. Get stuff for that.' HIS HONOUR Q. So what's Vs, did you say? A. Vs. It's an energy drink. Q. I see. Thank you. A. He'd make us do a lot of things. One time I had to wash his dog." The judgment after the trial 1. The trial judge undertook a detailed consideration and analysis of the phone intercept evidence and expressed the following conclusions in relation to the "rip call" (Judgment [50]-[51], [54]): "The officer considered that taking into account the entire contents of the call, the following interpretations are open: the parties might be discussing a rip; the reference to the car and lights and Christmas trees could involve a description consistent with a rip i.e. it could involve 'simulating use or pretending to be police' the reference being code for lights and sirens which are often employed by police vehicles. In my view, the following inferences are available: by reason of the manner in which the accused introduced the topic, it is tolerably clear that there was a genuine attempt to hide the true meaning of the communication, leading to a conclusion that the subject matter was considered to be important and required confidentiality. Clearly enough, the continued attempts by the accused to lead Adrian to mentioning the word "rip" made it plain that the latter did not initially grasp the intended subject matter of the conversation, so much so that the accused had to prompt him. The use of subterfuge and code cannot reasonably be explained by attributing a literal meaning to the conversation – in any event, the accused himself did not suggest it was a conversation intended to be understood literally. … In my view, this conversation discloses the nature of the criminal enterprise which was the general subject of the telephone calls, particularly between the accused and Richie but also referred to in conversations between the accused and Goddard. That is, a plan to rip off an unidentified person of either drugs or money by impersonating police." 1. Similarly, his Honour undertook a detailed consideration and analysis of the applicant's evidence. In relation to that evidence he concluded (Judgment [128]): "I … am satisfied beyond reasonable doubt that none of the explanations proffered by the accused in his evidence constitute a reasonable hypothesis consistent with his innocence. In my view they are self-evidently not reasonable, nor was the accused in the content of his evidence and in his demeanour, an honest and credible witness. I note that there is no requirement for me to positively accept the accused's version to find him not guilty, but I must consider that it is a possible reasonable version of events. I am satisfied beyond reasonable doubt that they are not." 1. His Honour drew the following inferences from the telephone intercepts (Judgment [123]): "In my opinion, the following logical and rational inferences are open from a consideration of the telephone intercepts: (a) Richie, the accused and others were planning a significant criminal enterprise: it was described as 'a big mission' and 'very worth it'. That it was not merely a supply of drugs is implicit because in other conversations, which were conceded to be about drug supplies, there were no similar references. There remains a possibility that it was a drug supply of some magnitude or some other substantial criminal enterprise. (b) The enterprise was initially planned to occur on 30 June 2014, hence the reference in the calls to 'the big day'. (c) It was expected that the enterprise was to occur on the days following but for unexplained reasons, it was put off or delayed. (d) The enterprise involved one or other of the participants possessing a gun and also included the use of a rented motor vehicle. (e) Over the following days, the enterprise was delayed for reasons not fully explained. Consequently, the hire of the motor vehicle was generally extended on an incremental basis, either day by day or a number of days. (f) When the delays occurred, items involved in the enterprise were returned to their original locations. (g) On 1 July 2014, it became plain that the criminal enterprise involved a rip-off in the sense explained by the expert, namely a robbery of an unidentified person or persons of either money or drugs. The rip-off was to involve impersonating police and the use of weapons. (h) The expectation of the participants was that by reason of the rip-off they were to make a substantial profit: 'a mad earn', later quantified by Richie as approximately $200,000. (i) As the rip-off was being considered from day-to-day, there was discussion between the potential participants about taking possession of and transferring the weapons/paraphernalia from those who were keeping them, to those who were required to use them in rip-off. (j) The accused was fully aware of the rip-off and the manner in which it was to be carried out." 1. His Honour reached the following conclusions concerning the applicant's possession of the items the subject of the charges and the purpose of that possession (Judgment [125], [127], [130]): "Accordingly, I find as a fact that the accused was aware of the presence in his room of the bullet-proof vest and antipersonnel spray, as well as the police badge, vest and uniform. I am satisfied beyond reasonable doubt that he was in possession of all of those items and in particular those which are the subject of counts 1 and 2. That conclusion is based upon the inferences drawn from the telephone intercepts as to the intended drug rip-off in the manner it was planned and also the location of the items in the room occupied by him. … I am also satisfied beyond reasonable doubt that notwithstanding the Glock 17 pistol was located by police in the bedroom occupied by the father of the accused, that the accused was aware of its presence in that location and either had sole custody or control of the firearm or joint custody and control with his father or others. … … Accepting these primary facts and the inferences which I have drawn, I am satisfied beyond reasonable doubt that the firearm and weapons were in the Belfield premises with the knowledge of the accused. I am satisfied beyond reasonable doubt that the purpose of the accused's possession of these items, was to be employed in the planned rip-off in late June or early July 2014." Determination of the application for leave to appeal Ground 1: the verdict is unreasonable or cannot be supported having regard to the evidence 1. This ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). Determination of it requires this Court to undertake "an independent assessment of the evidence, both as to its sufficiency and its quality" (SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14], citing Morris v The Queen (1987) 163 CLR 454 at 473; [1987] HCA 50). In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [56]-[58] the High Court approved the following test for determining whether a verdict is "unreasonable" or "cannot be supported, having regard to the evidence": "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 1. The applicant's submissions in support of this ground of appeal were confined to the propositions that 1) Detective Crematy's evidence was critical to, but did not provide a safe basis for, the trial judge's conclusions concerning the applicant's motive for possession of the prohibited items, and 2) that those conclusions were an integral element in his Honour's reasons for finding the applicant guilty of the offences charged. In particular, the applicant submitted that the trial judge ignored a significant qualification to Detective Crematy's evidence "about what 'rip' meant". The applicant contended that Detective Crematy considered the meaning of the term "rip" "in the context of the one telephone call only", and was unable to say in what sense that term was used in that particular conversation. The applicant complained that the trial judge did not take into account this limitation on Detective Crematy's evidence. 2. These submissions are based on an erroneous assumption as to the way in which the trial judge relied on Detective Crematy's evidence. His Honour considered Detective Crematy's evidence regarding the way in which the word "rip" was commonly used by drug suppliers. His Honour did not suggest however that Detective Crematy gave evidence as to the particular way in which the term had been used in the intercepted conversation. 3. As indicated in [12]-[13] above, Detective Crematy's evidence-in-chief was of his experience as to the way in which the term "rip" was generally used by persons in the supply of illicit drugs. It was only in cross-examination that he was asked what meaning the term bore in the particular conversation in question ("the rip call"). Understandably he resisted the invitation to express an opinion on that question. That question was one for the trial judge to answer, taking into account all of the evidence at the trial, (including, but not limited to, Detective Crematy's evidence). Detective Crematy did not profess to have the expertise to answer that question, and indeed did not do so. 4. In his judgment, Lakatos DCJ referred to Detective Crematy's evidence as to his experience of the common usage of the term "rip" and the different ways he had observed it to have been used (Judgment [49]). His Honour did not suggest that Detective Crematy said that the term was used in the particular conversation in a particular way. Instead, having referred to Detective Crematy's evidence of his experience, the judge proceeded to determine for himself what meaning should be attributed to the term in the particular context. Contrary to the applicant's submissions, his Honour did not fail to take account of a relevant qualification stated in Detective Crematy's evidence. The applicant's challenge to the judge's findings on conviction therefore fails. 5. No other challenge is made to the judge's directions to himself or to his findings. The applicant did not, for example, submit that the judge was not entitled to take into account Detective Crematy's evidence regarding his experience of the way in which drug suppliers use the term "rip". Nor did the applicant allege that the Crown case was defective or deficient in any other respect. 6. The result is that this ground of appeal must be rejected. In light of the narrow basis upon which the ground was put, it is not necessary for this Court to deal with it in a more general fashion. Nevertheless I indicate that, having conducted an independent assessment of the evidence, I do not have any doubt that the applicant had possession of the subject items, and did so for the purpose identified by the judge. In particular, the inferences the judge drew as to the matters discussed in the intercepted conversations were available from the evidence presented in the Crown case, especially from the items found on execution of the search warrants and the terms of the intercepts themselves. These inferences were available even if Detective Crematy's evidence were to be disregarded. 7. Furthermore, the applicant gave purported explanations of intercepted conversations, including the "rip call", which the trial judge found were implausible (ROS [80] and [83]). In such circumstances, the judge was entitled to draw inferences, which were already open on the Crown case, with greater comfort (see Kuhl v Zurich Financial Services Australia (2011) 243 CLR 361; [2011] HCA 11 at [64]). As in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, that the evidence of the accused (here the applicant) "was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with [his] innocence" (at [57]). 8. In these circumstances there is no reasonable doubt that the applicant committed the offences of which he was convicted. His appeal against his convictions must accordingly be rejected. Ground 2: the judge erred in taking into account offences on the Form 1 when they had not been attributed to any principal offence 1. Section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is in the following terms: "32 Prosecutor may file list of additional charges (1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence. (2) A list of additional charges may be filed at any time: (a) after the court finds the offender guilty of the principal offence, and (b) before the court deals with the offender for the principal offence. (3) A copy of the list of additional charges, as filed in the court, is to be given to the offender. (4) A list of additional charges: (a) (Repealed) (b) must be signed by the offender, and (c) must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations. (5) A list of additional charges is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised. (6) A failure to comply with the requirements of this section does not invalidate any sentence imposed by the court for the principal offence." 1. It follows from the terms of s 32(1) that the document filed by the prosecutor (a "Form 1") must identify the "principal offence" in relation to which the offender wishes other offences to be taken into account (R v Stephen Barry Williams (2005) 156 A Crim R 225; [2005] NSWCCA 355 at [29]). The Form 1 filed in the present case failed to do this. The Form listed 11 "additional charges" on its reverse side, and the front of the Form related those additional charges to "the offence of Supply Prohibited Drug" (emphasis added). By the Indictment concerned with drug supply however, the applicant was charged with 11 drug supply offences. Therefore the Form 1 did not relate the "additional charges" listed on its reverse side to any particular offences charged in that Indictment. Instead it related the charges to the Indictment offences globally. 2. The position was however rectified by a Crown Sentence Summary, which was provided to the Court at sentence and contained a schedule relating each of the "additional charges" to a particular count in the Indictment. When the document was tendered at the sentencing hearing, the applicant's counsel said that the document and its attachments were "agreed". Although the further schedule was not signed by "the offender" as required by s 32(4), s 32(6) states that a failure to comply with the requirements of s 32 does not invalidate any sentence imposed by the court for the principal offence. That subsection is applicable, at least, in a circumstance such as the present where a document otherwise complying with s 32 is tendered on a sentencing hearing with the consent of the offender. 3. Further, in the sentencing judgment, when considering the charges in the Indictment, his Honour also considered the particular "additional charge" that the schedule related to that count. The schedule was thus treated as the applicable Form 1, and was so described by his Honour. 4. In these circumstances, Ground 2 must be rejected. The sentence is manifestly excessive 1. The applicant advanced this ground of appeal on the limited basis that the judge did not take proper account of the applicant's subjective case. 2. The judge delivered a detailed sentencing judgment of 33 pages, referring at some length to the applicant's subjective case. The only part of that subjective case that the applicant submitted his Honour did not properly take into account was evidence of the applicant's mental health. The applicant submitted that his Honour erred in not treating the applicant's moral culpability as reduced by his mental conditions, and in not concluding that general deterrence was of reduced significance due to those conditions. 3. For the reasons below, I do not consider that the judge erred in these respects. As a result, the only basis upon which this ground of appeal is advanced is without substance. In these circumstances, this ground must be rejected. The evidence and submissions at the sentencing hearing concerning the applicant's mental health 1. The applicant tendered a report of Dr Mark Milic, a clinical and forensic psychologist. Dr Milic interviewed the applicant for one and a half hours via video link. Dr Milic relevantly concluded: "After he completed high school, he eventually applied his talent to sales work and did well. Mr O'Connor's progress in life was derailed after his uncle was killed in 2008. Mr O'Connor turned to cocaine and ice-amphetamines for emotional escape, became addicted to these drugs, and lost focus on his career. In 2014, he suffered another setback when he was assaulted in a pub. This left him with symptoms of post-traumatic stress disorder which would have made it more difficult to give up drugs. He became more reliant on antisocial friends for protection and to feed his addiction. It is in this context that he committed the offences." 1. The applicant also tendered a report of Mr Chafic Awit, a registered psychologist. Mr Awit met with the applicant on eight occasions. 2. Mr Awit similarly recorded that the applicant reported that he began using illicit substances not long after his uncle's murder. The applicant said that "he wanted to numb himself as a means of escaping his reality". Mr Awit was of the view that the applicant came to suffer from a "Substance Use Disorder – Severe" shortly after his uncle's murder. 3. Mr Awit recorded that the applicant said his illicit substance use "got out of hand", and that he resorted to supply in order to support his own habit. 4. Mr Awit concluded that the applicant suffered from a "Generalised Anxiety Disorder; Major Depressive Disorder; and Substance Use Disorder – Severe (in Sustained Remission)". According to Mr Awit, the applicant's symptoms indicating the presence of the depressive disorder were: depressed mood, insomnia, loss of energy, feelings of worthlessness and diminished ability to think and concentrate. 5. Mr Awit further concluded that the three disorders "played a significant role in relation to the offences before the Court". This was on the basis that the applicant's depression and anxiety conditions "played a significant role in leading Mr O'Connor [to] being more susceptible to developing an illicit substance use disorder". 6. In his written submissions at the sentencing hearing, the applicant submitted that his conditions of depression and anxiety, as diagnosed by Mr Awit, were relevant to determining his moral culpability and any need for specific deterrence. The applicant also submitted that there was "some nexus" between his mental health condition and his offending, with the result that general deterrence should be treated as of reduced significance in his sentencing. The sentencing judgment 1. In a detailed description of the applicant's subjective circumstances, the judge referred to the severe impact that the death of the applicant's uncle had on the applicant and noted that, as a result, the applicant "struggled to cope emotionally and became introduced to illicit substances". His Honour also noted that in 2008 the applicant was diagnosed with depression, but sought no treatment until he attended his general practitioner in 2014 and was prescribed medication. 2. His Honour referred to Dr Milic's report, noting Dr Milic's reference to "the trauma and depression which overcame the offender in 2008 after the murder of his uncle". 3. His Honour also referred to Mr Awit's diagnoses of "generalised anxiety disorder, major depressive order and substance use disorder, severe in sustained remission". Relevant authorities 1. In R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, this Court rejected the proposition that drug addiction is, of itself, a mitigating factor to be taken into account in the sentencing process. Nevertheless there are some circumstances in which drug addiction might still be relevant to sentencing, as described in Henry by Wood CJ at CL at [273]. For example, the addiction might be relevant as a subjective circumstance where it "was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness or surgery" (ibid). Turner v R [2011] NSWCCA 189 is an example of such a case (see at [58]). 2. In R v SY [2003] NSWCCA 291, Whealy J (with the concurrence of Ipp JA and Howie J) stated: "61 With due respect to the sentencing judge in the present matter, he appears to have treated para 273 of Wood CJ at CL's decision [in Henry] (especially para (c)(ii)) as some type of 'escape clause' which, without more, permits a lenient sentence to be given where it might be said that addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that the ability to exercise appropriate judgment or choice was incomplete. In proper context, the relatively rare and unusual situations mentioned by Wood CJ at CL as examples were no more than possible subjective circumstances which might be taken into account in the limited way he suggested. 62 In my opinion, the sentencing Judge here has misunderstood what his Honour was saying and taken his Honour's remarks completely out of context. In any event, there are many demons that drive people to addictive habits whether they be habits related to alcohol, drugs or gambling. Some of those demons are within and some are without. In almost every case addictive personalities will be driven to one degree or another by personal circumstances or history. The taking of drugs in an addictive fashion is almost always likely to involve self-medication but that cannot of itself be a mitigating factor. Moreover, in all but the rarest situations, the continued use of drugs to feed an addiction will involve personal choice and the exercise of free will. People, even those in the grip of drug addiction, must take responsibility for their own actions." 1. His Honour added at [64] that "there is nothing in the passage in Henry that suggests that the use of heroin as a form of self-medication to exorcise real or imagined demons is any warrant for elevating considerations of leniency above those relating to the imposition of a proper sentence reflecting appropriate measures of punishment, retribution and deterrence". 2. In Bichar v R [2006] NSWCCA 1, Howie J (with the concurrence of Basten JA and Hall J) said: "23 Of perhaps more significance was the fact the Judge took into account as a matter of mitigation the applicant's drug addiction. He did so relying upon what Wood CJ at CL said in Henry and concluded that the applicant did not choose to embark upon drug taking but that it was a result of his experiences on active service and of the injury he suffered in his employment as a train guard. The Judge stated, 'It is reasonable to assume that without those events in his life he would be very unlikely to have resorted to illicit drugs'. In my respectful opinion the Judge erred in treating the appellant's drug taking as a matter of mitigation. It is very often the case that there will be some life experience or some psychological or psychiatric state that causes, or at least contributes to, the use of drugs. One will almost always be able to assume that without that experience or without the disturbed psychological or psychiatric state the person would have been unlikely to have resorted to illegal drugs. 24 In any event the fact that some traumatic or injurious event results in a person using drugs does not mean that drug addiction is a matter of mitigation. There is nothing in what Wood CJ at CL said in Henry to suggest otherwise … 25 There was no evidence in the present case that … [the] applicant's use of heroin was not a matter of personal choice notwithstanding that it might have helped him overcome the effects of his personal experiences or the results of the injury he suffered. The psychologist, without any factual support, suggested that the applicant might have used heroin to overcome pain. But that was not the evidence of the applicant. In any event self medication by the use of prohibited drugs to overcome psychological or physical trauma is not a mitigating factor: R v SY [2003] NSWCCA 291 at [62] and following." 1. In R v Todorovic [2008] NSWCCA 49, the offender had a gambling addiction which resulted from a significant psychological disorder. The sentencing judge found that the offender's offences of dishonestly obtaining money by deception were causally related to the addiction. Having referred to material indicating that "gambling addiction is not uncommonly the result of psychological conditions", R S Hulme J stated: "57 Furthermore if gambling, as a 'way of controlling (an) emotional state and coping with personal problems by avoidance' in circumstances of 'mild depression', 'negative emotional states' and the consequences of dysfunctional relationships, is to be regarded as a reason for leniency, then why should not many of those who seek to ameliorate or blot out their suffering by resort to drugs and then to crime be treated similarly? After all, experience shows that many drug addicts suffer from Attention Deficit, Bipolar, Borderline Personality or other psychological disorders that are said to be causative of, or contributing factors to, their drug addiction." Determination of the ground of appeal 1. In light of these authorities, I consider that this ground of appeal should be rejected. 2. Mr Awit's report did not indicate that there was a direct link between the applicant's anxiety or depressive disorders and his offending. Rather, it suggested that these conditions were causally linked to the applicant's drug addiction. As noted above at [45], Mr Awit said these conditions "played a significant role in leading Mr O'Connor [to] being more susceptible to developing an illicit substance use disorder". As the authorities to which I have referred indicate, the fact that the applicant may have, and probably did, turn to drugs to reduce the impact of traumatic life events does not lessen his moral culpability or render him less suitable than otherwise as a vehicle for general deterrence. 3. Moreover, the applicant's drug addiction was only causally related to his offending in the sense that it imposed an imperative to obtain funds, which the applicant chose to generate, at least in part, through illegal means. His drug supply and other offences were not impulsive acts that might have resulted from drug addiction. On the contrary, the telephone intercepts indicated that there was a considerable degree of planning involved in the activities of the applicant and his associates, and there was no reason to treat the offences as anything other than considered acts. 4. In the absence of any evidence of a direct link between the applicant's anxiety and depression and his offending, there was no reason for his Honour to do more than refer in his sentencing judgment to the evidence of the two psychologists. Their evidence did not require his Honour to attach any greater significance to the applicant's mental health conditions than to note them as part of the applicant's subjective case, which his Honour did. Orders 1. For the reasons above, I propose the following orders: 1. Grant the applicant leave to appeal against his convictions and sentence. 2. Dismiss the appeal. 1. FULLERTON J: I agree with Macfarlan JA that the appeal should be dismissed and for the reasons his Honour has detailed with one qualification. With respect to the matters to which his Honour refers at [30] I would limit myself to saying that it was well open to the learned trial judge to find the applicant's purported explanations of intercepted conversations, including the "rip call", implausible. Further, in the passage from the trial judge's reasons which Macfarlan JA has quoted at [20] his Honour correctly directed himself regarding the consequence of the applicant's account of the conversations being rejected. Namely, that that account did not give rise to a reasonable hypothesis consistent with innocence. 2. FAGAN J: I also agree with Macfarlan J, with the same qualification regarding the subject matter of [30] as expressed by Fullerton J. ********** Amendments 19 February 2018 - [1] Count 3: Weapons Prohibition Act 1988 changed to Firearms Act 1996 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: 19 February 2018