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Court of Criminal Appeal 28 February 2024

Robertson v R

[2024] NSWCCA 22

Drugs

Citation: Robertson v R [2024] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 28 February 2024
Judge(s): Harrison CJ at CL; Wilson J; Ierace J (judgment delivered by Ierace J, with whom the other judges agreed)

Background

The applicant pleaded guilty in the District Court at Lismore to supplying not less than a commercial quantity of cocaine, contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985 (NSW). The supply involved nine transactions with an undercover police operative between January and April 2021, totalling 532.01g of cocaine and $174,000 in cash payments. Three further minor supply offences were taken into account on a Form 1.

The District Court sentenced the applicant to six years imprisonment with a non-parole period of three years and six months. The sentencing judge assessed the objective seriousness of the offence as mid-range, citing the financial benefit sought by the applicant as a significant factor, and declined to reduce the applicant's moral culpability despite his background of profound childhood deprivation.

The applicant sought leave to appeal on four grounds, arguing error in the assessment of objective seriousness, misapplication of the principles in Bugmy v The Queen (2013) 249 CLR 571, manifest excess, and a justifiable sense of grievance arising from the sentence imposed on a co-offender.

  • Whether the sentencing judge erred by treating financial gain as a significant factor in assessing the objective seriousness of the offence, without adequately considering the applicant's underlying motive for seeking that gain
  • Whether the sentencing judge incorrectly applied the Bugmy principles by refusing to reduce the applicant's moral culpability on the basis that the offence was pre-planned and that the applicant was aware it was wrong
  • Whether the sentence was manifestly excessive
  • Whether the applicant had a justifiable sense of grievance in light of the co-offender's sentence

Decision

Ground 1: Objective seriousness and financial motive

The Court held that engaging in drug supply to repay a drug debt or fund a drug addiction is not mitigatory of objective seriousness, but neither does it automatically aggravate it. Financial reward may increase objective gravity, but only where the offender seeks gain beyond what is required to service a debt or addiction. It is the purpose behind the financial gain, not merely its existence, that matters in the sentencing exercise.

The sentencing judge treated financial gain as the applicant's primary motive and a significant factor in setting objective seriousness, while giving little weight to the reasons behind that motive. The Court found this amounted to error, as the applicant's underlying reasons for seeking financial gain were a relevant consideration that the sentencing judge had not properly weighed.

Ground 2: Bugmy principles and moral culpability

The Court confirmed that a sentencing judge may conclude, after weighing all relevant evidence, that an offender's moral culpability is not reduced even where the offence was pre-planned. However, it is incorrect to state as a matter of principle that pre-planning precludes any reduction in moral culpability under Bugmy. The sentencing judge's reasoning appeared to treat planning as a bar, which reflected an error of principle.

The Court further held that an offender's awareness that their conduct was wrong, and any earlier positive achievements, are not pivotal considerations in applying Bugmy. The High Court's observations in Bugmy recognise that the effects of profound childhood deprivation may be embedded and do not necessarily diminish with improved circumstances or the passage of time. The sentencing judge's application of those principles was therefore incorrect, establishing error in the House v The King sense. Because error was established on grounds 1 and 2, it was unnecessary to consider manifest excess or the co-offender comparison.

Re-sentence

On resentencing, the Court found the applicant's moral culpability was significantly reduced by two factors: his background of profound childhood deprivation, and his mental health diagnoses (particularly depression and anxiety), which contributed to the offending. The Court applied a 25 per cent discount for the early guilty plea and found special circumstances, noting the applicant would require substantial supervision and ideally treatment upon release.

Orders Made

  • Leave to appeal granted
  • Appeal allowed on grounds 1 and 2
  • Sentence imposed by Judge McLennan in the District Court on 24 May 2022 quashed
  • Applicant resentenced to imprisonment for 4 years and 6 months, backdated to commence 22 April 2021 and to expire 21 October 2025, with a non-parole period of 2 years and 11 months expiring 21 March 2024

Key Takeaways

  • Financial gain is not automatically an aggravating factor in drug supply sentencing. Where an offender's motive for seeking financial gain is to repay a drug debt or fund an addiction, the purpose behind that gain is a relevant consideration in assessing objective seriousness, not merely the fact of financial gain itself.
  • Under the Bugmy principles, pre-planning does not operate as a categorical bar to reducing an offender's moral culpability. A sentencing judge may reach that conclusion on the facts, but cannot treat it as an automatic legal consequence of pre-planning.
  • The effects of profound childhood deprivation on an offender's moral compass may be deeply embedded and are not necessarily diminished by the passage of time, an offender's awareness that conduct is wrong, or evidence of prior positive achievements. Those factors are not pivotal to the Bugmy analysis.
  • The Court of Criminal Appeal reduced the total sentence from six years to four years and six months, with the non-parole period reduced from three years and six months to two years and eleven months, reflecting the errors in both the objective seriousness assessment and the moral culpability analysis.
  • Where a sentencing court incorrectly restricts the operation of Bugmy by applying it through an erroneous legal lens, that constitutes error in the House v The King sense, enlivening appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 25D(2)(a), 32, 33
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 10(1), 25(1), 25(2), 32(1)(c), 32(1)(g)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- CDPP v De La Rosa [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Baines v R [2023] NSWCCA 302
- Chiarlini v R [2023] NSWCCA 227
- Harris v R [2023] NSWCCA 174
- Hoskins v R [2021] NSWCCA 169
- Taysavang v R; Lee v R [2017] NSWCCA 146
- Hejazi v R [2009] NSWCCA 282
- Quayle v R [2010] NSWCCA 16
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Parente v R [2017] NSWCCA 284
- Cicciarello v R [2009] NSWCCA 272