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Court of Criminal Appeal 23 August 2023

Calason v R

[2023] NSWCCA 209

Drugs
CRIME SENTENCE APPEAL NO ERROR LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Calason v R [2023] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 23 August 2023
Judges: Harrison J, Wilson J, N Adams J

Background

The applicant pleaded guilty in the District Court to importing a marketable quantity of cocaine (contrary to the Criminal Code Act 1995 (Cth)), with a further drug importation matter taken into account on a schedule. He was sentenced to six years imprisonment with a four-year non-parole period, receiving a 25% discount for his plea.

The offending arose from the applicant's role as a FedEx courier. Using an encrypted communications platform called ANOM, he coordinated the receipt of cocaine consignments at the FedEx depot and arranged their handover to co-conspirators. A psychologist's report tendered at sentence described a background of childhood poverty, domestic violence, physical abuse, and parental alcohol use.

The applicant sought leave to appeal his sentence, arguing that the sentencing judge erred by excluding his disadvantaged childhood as a mitigating factor or as a basis for leniency.

  • Whether the sentencing judge erred by failing to treat the applicant's childhood adversity as a mitigating factor or a basis for leniency in sentencing.
  • Whether a causal connection between childhood disadvantage and offending is required before that disadvantage can reduce an offender's moral culpability.
  • Whether, in the absence of such a causal link, a sentencing court may still give weight to childhood adversity through the process of instinctive synthesis.

Decision

N Adams J (with Harrison J and Wilson J agreeing) dismissed the appeal. The Court noted that no submission had been made at first instance inviting the sentencing judge to find that the applicant's childhood adversity reduced his moral culpability. The defence submissions at sentence referred to the childhood matters in a general way, but expressly conceded there was no direct parallel to the extreme circumstances discussed in comparable cases.

The Court applied the established principle from Dungay v R [2020] NSWCCA 209, which confirms that while a causal link between childhood disadvantage and offending is not strictly required to reduce moral culpability, such factors can always be given full weight through instinctive synthesis even where no causal link exists. The applicant's counsel argued at the appeal hearing that this passage in Dungay was wrong, but N Adams J found it had been consistently followed across multiple subsequent decisions of the Court of Criminal Appeal without any challenge to its correctness. The Court declined to depart from it.

The Court was satisfied the sentencing judge had treated the applicant's depression, anxiety, and stress arising from his childhood as matters "relevant to the sentencing process." Given those matters could not have been treated as aggravating factors, and the judge described them as "relevant" rather than setting them aside, the Court concluded they had been taken into account as mitigating factors, consistent with the Dungay principle. No error was established.

Wilson J added that the application was properly characterised as an "armchair appeal": it advanced a case not put at first instance and raised an argument contrary to established sentencing law. Leave was nonetheless granted in the interests of finality.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Childhood disadvantage does not need to be causally connected to the offending in order to feature in sentencing, but where no causal link exists, the sentencing court gives weight to such factors through instinctive synthesis rather than as a direct reduction in moral culpability.
  • The Court of Criminal Appeal confirmed the principle in Dungay v R [2020] NSWCCA 209 at [153] as a correct statement of law, noting it has been followed consistently in at least six subsequent decisions of the Court without any challenge to its accuracy.
  • Where a finding of reduced moral culpability based on childhood adversity was never put to the sentencing judge, an appellate court will not treat the failure to make such a finding as error.
  • Describing personal background matters as "relevant to the sentencing process" indicates the sentencing court took them into account as mitigating factors, not that it excluded them.
  • In dismissing the appeal, the Court reiterated that leave may still be granted to advance a meritless ground where the community's interest in finality justifies bringing the matter to a definitive conclusion.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.2(1), 11.1(1), 11.2A(1)
- Crimes Act 1914 (Cth), s 16BA

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dungay v R [2020] NSWCCA 209
- R v Millwood [2012] NSWCCA 2
- R v Fernando (1992) 76 A Crim R 58
- Bargashoun v R [2023] NSWCCA 17
- Gould v R [2023] NSWCCA 103
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
- Newman v R [2021] NSWCCA 101
- Hoskins v R [2021] NSWCCA 169
- MH v R [2022] NSWCCA 287
- Lloyd v R [2022] NSWCCA 18
- DR v R [2022] NSWCCA 151
- Nasrallah v R [2021] NSWCCA 207
- R v Calason [2022] NSWDC 544