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Court of Criminal Appeal 9 April 2025

Elchaar v R

[2025] NSWCCA 50

Drugs
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE DE LA ROSA PRINCIPLES

Citation: Elchaar v R [2025] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 9 April 2025
Judges: Davies J, Lonergan J (principal judgment), Yehia J

Background

The appellant pleaded guilty to conspiring to traffic a commercial quantity of methamphetamine, a federal offence carrying a maximum penalty of life imprisonment. Two further offences (conspiring to deal in proceeds of crime worth $1 million or more, and unlawfully possessing a radiocommunications device) were taken into account on sentence. The sentencing judge in the District Court imposed 10 years and 6 months imprisonment with a non-parole period of 6 years and 6 months, after applying a 25% discount for the guilty plea.

The offending spanned approximately six months in early 2021. The appellant was a member of a four-person syndicate that used ANOM encrypted devices to organise the transportation of methamphetamine from Sydney to Perth and the return of approximately $8 million cash. Intercepted communications showed the appellant playing an active organisational role: directing operational security, coordinating packing logistics, and managing personnel.

On appeal, the appellant challenged the sentence on two related grounds, both of which turned on the sentencing judge's treatment of expert evidence about the appellant's neurocognitive disorder.

  • Whether the sentencing judge erred in finding that the appellant's neurocognitive disorder did not reduce his moral culpability, including by: rejecting the neuropsychologist's evidence; framing the wrong legal question; and failing to engage with an unchallenged psychiatric opinion.
  • Whether the sentencing judge erred in failing to moderate the weight given to general deterrence in light of the neurocognitive disorder, applying the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach on either ground.

On the first ground, the Court accepted that the sentencing judge had correctly understood and applied the De La Rosa principles. The judge's references to whether the appellant's judgment was "so impaired" that he could not understand the consequences of his actions were found to be a response to a specific submission made by senior counsel at the sentence hearing, not a statement of the legal test itself. The judge was not, therefore, applying a stricter standard than the law requires.

Critically, both experts described the offending as "impulsive" or "relatively impulsive," but this characterisation was fundamentally inconsistent with the agreed facts. The agreed facts demonstrated months of careful, deliberate organisation: coordinating logistics, managing operational security, directing participants, and arranging packing and transport across multiple states. The sentencing judge was entitled to find that the expert opinions could not be reconciled with that agreed factual record and, accordingly, that the appellant's mental health impairments did not materially contribute to the offending.

On the second ground, because the sentencing judge was entitled to find no material connection between the disorder and the offending, the basis for moderating general deterrence under De La Rosa was not made out. No error arose from the judge's treatment of that issue either.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is not required to accept expert psychiatric or neuropsychological evidence where it is irreconcilable with the agreed facts of the offending.
  • Under the De La Rosa principles, a reduction in the weight given to general deterrence on account of a mental health condition requires a finding that the condition materially contributed to the offending. No such reduction is warranted where that causal link is not established.
  • A description of complex, multi-month, coordinated drug trafficking as "impulsive" offending will face significant difficulty when assessed against a detailed agreed statement of facts demonstrating sustained organisation and deliberate participation.
  • The Court confirmed that a sentencing judge addressing the specific terms of a submission at sentence does not thereby adopt those terms as the legal test, provided the correct principles are otherwise applied.
  • No error arises from a sentencing judge separately addressing and rejecting a discrete aspect of defence submissions about how a cognitive impairment manifested, even where some expert evidence on that issue was unchallenged in cross-examination.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5(1), 302.2(1), 400.3(1A)
- Radiocommunications Act 1992 (Cth), s 47(1)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- Aslan v R [2014] NSWCCA 114
- Moiler v R [2021] NSWCCA 73
- Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214
- Carl v R [2023] NSWCCA 190
- DB v R [2023] NSWCCA 323
- Isaac v R [2024] NSWCCA 2; (2024) 384 FLR 431
- RG v R [2025] NSWCCA 36