Borg v R [2022] NSWCCA 70 (1 April 2022)

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Case Name:	Borg v R
Medium Neutral Citation:	[2022] NSWCCA 70
Hearing Date(s):	11 March 2022
Date of Orders:	01 April 2022
Decision Date:	1 April 2022
Before:	Beech-Jones CJ at CL at [1]; N Adams J at [2]; Lonergan J at [3].
Decision:	(1) The time for filing a notice of appeal for leave to appeal against sentence is extended to 11 March 2022. (2) Leave to appeal granted. (3) Appeal allowed. (4) Sentence imposed by Turnbull SC DCJ on 17 October 2019 is quashed and in lieu thereof the following sentence is imposed: An aggregate sentence of 10 years and 6 months, commencing on 27 July 2017 and expiring on 26 January 2028, with an aggregate non-parole period of 7 years commencing on 27 July 2017 and expiring on 26 July 2024. (5) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are: (a) For count 1, 3 years and 6 months with a non-parole period of 2 years and 3 months. (b) For count 2, 9 years and 6 months with a non-parole period of 6 years. (c) For count 3, taking into account the offence on the Form 1, 7 years, 6 months with a non-parole period of 5 years.
Catchwords:	CRIME – Appeals – Appeal against sentence – wrong facts provided on sentence in respect of number of pills referable to count 2 – re-sentence – exercise of discretion – applicant’s subjective factors – hardship – conditions in custody – COVID-19 related – special circumstances
Legislation Cited:	Crimes Act 1900 (NSW), s 198B Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	House v R (1936) 55 CLR 501; [1936] HCA 40 Kentwell v the Queen (2014) 252 CLR 601; [2014] HCA 37 Newman (a pseudonym) v R [2019] NSWCCA 157 R v Girard [2004] NSWCCA 170 Taha v R [2022] NSWCCA 46 Young (a pseudonym) v R [2021] NSWCCA 163
Category:	Principal judgment
Parties:	Matthew Borg (Applicant) Regina (Respondent)
Representation:	Counsel: D Carroll (Applicant) E Wilkins SC (Respondent) Solicitors: AA Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/228704
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court of NSW
Jurisdiction:	Criminal
Citation:	Not applicable
Date of Decision:	17 October 2019
Before:	Turnbull SC DCJ
File Number(s):	2017/00228704

3 LONERGAN J: The applicant seeks leave to appeal from a sentence imposed by Judge Turnbull SC in the District Court sitting in Penrith, on 17 October 2019.

4 He pleaded guilty to three counts of drug offending relating to the manufacture of 3.4-methylenedioxyamphetamine (MDA). The offences were charged on the indictment as follows:

Count 1: On 12 July 2017 in Jamistown in the state of New South Wales did manufacture an amount of a prohibited drug namely 3.4-methylenedioxyamphetamine ("MDA") which was not less than the commercial quantity applicable to that prohibited drug (s24(2) Drug Misuse and Trafficking Act 1985).

Count 2: Between 26 July 2017 and 27 July 2017 in Jamistown in the state of New South Wales did manufacture an amount of a prohibited drug namely MDA which was not less than the large commercial quantity applicable to that prohibited drug (s24(2) Drug Misuse and Trafficking Act 1985).

Count 3: On 12 July 2017 in Jordan Springs in the state of New South Wales did manufacture an amount of a prohibited drug namely MDA which was not less than the large commercial quantity applicable to that prohibited drug (s24(2) Drug Misuse and Trafficking Act 1985).

5 Taken into account on a Form 1 was an offence of recklessly deal with the proceeds of crime, ($35,050), in contravention of s193B of the Crimes Act 1900, attached to Count 3.

6 The maximum penalty that applies to Counts 2 and 3 is life imprisonment with a standard non-parole period of 15 years. The maximum penalty that applies to Count 1 is 15 years imprisonment with a 10-year non-parole period. The maximum potential penalty for the offence on the Form 1, were it being dealt with on the indictment, is 10 years imprisonment.

7 The applicant was sentenced to an aggregate sentence of 11 years and 10 months imprisonment, commencing on 27 July 2017 and expiring on 26 May 2029. Judge Turnbull made a finding of special circumstances and set a non-parole period of 7 years and 10 months, (around 66% of the total term), expiring on 26 May 2025.

Count 1: 3 years and 9 months with a non-parole period of 2 years and 6 months.

Count 2: 10 years and 6 months with a non-parole period of 6 years and 11 months.

10 That error is conceded by the Crown as is the fact that the error has the capacity to affect the sentence. (The Crown maintains however for reasons I will come to, that no different sentence should be passed).

11 The Notice of appeal was filed on 7 September 2021. The applicant requires an extension of time. The explanation for the delay is set out in the Reasons for Filing a Notice of Appeal out of Time document completed by Ms Wearin dated 3 September 2021 and the affidavit of Ms Wearin affirmed 6 September 2021. In the circumstances explained in that material, that extension should be granted.

12 On 7 June 2019 before Judge Hanley SC, the applicant entered guilty pleas to the three counts on the indictment. The Crown handed up a statement of agreed facts which the applicant signed, together with the signed Form 1. The agreed facts document was not marked as an exhibit. The matter was adjourned to 11 October 2019 for sentence.

13 On 11 October 2019 the sentencing proceedings was conducted before Judge Turnbull SC. The agreed facts document tendered on this day was not the document tendered before Judge Hanley. It comprised an unsigned version which had a different number of tablets asserted to have been produced by the applicant on the night of 26 July to 27 July 2017 (Count 2) – “no less than 10,000”, instead of “between 3,000-4000” as was stated in the agreed signed version of the agreed facts.

14 His Honour Judge Turnbull, not having the signed version tendered in June 2019 brought to his attention, proceeded to sentence based on the unsigned version of the agreed facts which were not, it is now common ground, the agreed facts in respect of Count 2, confined as it was, by formal agreement to 3,000 to 4,000 tablets.

15 Other than the challenge to the incorrect number of tablets for Count 2, and the effect of that error, the facts as found by the sentencing judge had been agreed and were set out succinctly in the remarks on sentence.

16 The applicant owned and operated a concrete pumping business operating from a factory unit at 35/38 Abel St, Jamistown. The family home was at 12 Landsborough St, Jordan Springs.

17 On 3 July 2017, police executed a covert search warrant at the factory unit. Located within the unit was a single station tablet press and tableting agents underneath shelving and within empty drums. The items were left in situ and covert cameras were installed.

18 On 12 July 2017, surveillance devices lawfully recorded the applicant removing the tablet press from underneath the shelving unit and mixing tableting agents with a powdered substance. The applicant operated the tablet press, producing no less than 1,500 tablets.

19 With a net weight for an average tablet of 0.3 grams, his Honour found the calculated total net weight produced on that occasion to be in the order of 450 grams.

20 On 26 July 2017, at about 10:00pm at the factory unit, surveillance devices lawfully recorded the applicant removing the tablet press from where it was concealed and mixing tableting agents with a powdered substance.

21 The applicant on that occasion operated the tablet press and produced no less than 10,000 tablets and placed them in resealable bags. (This finding was based on the erroneous agreed facts).

22 His Honour noted that the net weight of those tablets was greater than the large commercial quantity as defined by statute as 500 grams. The items produced included the following items found on execution of the search warrant on 27 July 2017:

23 The applicant was arrested at about 1:30am on 27 July 2017 after leaving the unit.

24 The third count arose from the search at the applicant's family home, where police located chemicals and equipment associated with the manufacture of MDA in the garage.

25 Conclusions in the expert report of Daniel Coughlan, (Forensic Chemist, FASS) were accepted and relied upon by his Honour:

26 Over twenty fingerprints on the items associated with the manufacture of illicit drugs found at the Jordan Springs premises matched those of the applicant. Located within the bedroom was a USB which contained a large number of documents relating to information about the manufacturing of drugs. Within the garage were also handwritten documents with chemical and equipment lists consistent with illicit manufacture.

27 In relation to the Form 1 offence, his Honour found that the money located in a kitchen cupboard, ($35,050), was the proceeds of crime and related to drug manufacturing.

28 His Honour concluded that the applicant was the principal figure responsible for the manufacture of the MDA from the work and residential premises from 3 July to 27 July 2017. He observed that in drug matters the role of the offender is the most important aspect in assessing objective seriousness. The statement of facts did not provide the level of detail that one would necessarily look to try and assess the culpability of the applicant and where on a range the offending behaviour lies.

29 His Honour noted that the quantification of amount is an important factor when it comes to the manufacture of prohibited drugs to a large commercial quantity and that it was an inherent part of the offences that they occurred within a larger criminal enterprise. He also noted there was financial motive.

30 His Honour described the applicant’s role as an “indispensable step in the chain”, that he showed a degree of commercial acumen, and that the drugs were to be sent into the community for immediate consumption

31 The purity of the pills assessed at 48.5% and the powder at 79% was a matter to take into account in assessing the seriousness of the offending.

32 The number of pills referable to Count 1 was noted as 1,500. This was an amount which brought the offending to within the commercial quantity. His Honour assessed this offending at below the mid-range of seriousness for this type of offence, bearing in mind the number of tablets and that this was the first time there was evidence that the applicant had offended in this way.

33 The amount found by his Honour to be referrable to Count 2 was 10,000 pills. His Honour concluded that this fell into the mid-range of objective seriousness, with the number of pills being described as “a significant number of pills” which were “market ready”, his Honour concluded, based on the facts that he had relating to Count 2 that it was “an offence committed on a substantial scale”.

34 His Honour noted that his findings in respect of Count 3 were restricted by the “limited detail available” in the agreed facts touching upon this count. He noted however that the applicant was the principal figure in the manufacture of drugs on both premises, and that was clearly something he must take into account, but he could not find “confidently and certainly not beyond a reasonable doubt” the actual amount manufactured at the Jordan Springs premises. He noted that the agreed facts regarding Count 3 were sufficient to support a minimum threshold for weight, but no maximum threshold. In those circumstances and considering the applicant’s role and the period of the offending, his Honour found that the offence fell somewhat below the middle range.

35 In terms of the subjective case, his Honour noted that the applicant was 35 years of age and whilst acknowledging the need to treat with care any self-serving statements of the applicant contained within the psychiatrist Dr Furst’s report, his Honour did not have any problem accepting much of the background set out in that report.

36 His Honour noted Dr Furst’s diagnosis of panic disorder, substance abuse disorder and attention deficit hyperactivity disorder (ADHD). He noted that when the applicant was 13 years old his mother committed suicide, which created ongoing feelings of grief and depression. His Honour also noted that when the applicant was a child, he was the subject of inappropriate touching and noted the well-recognised line of authority indicating that people who are sexually abused in childhood are not uncommonly subject to the onset of mental disorders in adult life.

37 The history of ADHD and drug use which commenced in high school and continued through to recent years was noted as well as the applicant’s gambling addiction.

38 His Honour referred to the applicant having engaged in training and qualifications as an electrician and that he continued working in that role until 2015. His Honour made favourable conclusions about the applicant’s work ethic which had continued to be impressive whilst in custody.

39 The motivation for the offending was observed to be financial, in the context of owing people money. His Honour noted the statements of the applicant that at the time, his business was suffering from financial pressures, his wife was pregnant with their second child, and he himself was suffering increased anxiety and depression.

40 Hardship related to separation from his young family was noted as a factor, but his Honour held that it was not exceptional, but just a factor to be taken into account as part of the general “subjective mix”.

41 The applicant’s letter to the Court was noted. The applicant did not give evidence. His Honour found that the applicant was remorseful, unlikely to reoffend, had very good prospects of rehabilitation and that he is a person of good character who should be considered a first offender.

42 The sentence was discounted by 15% for the utilitarian value of the plea of guilty.

43 His Honour also concluded special circumstances applied based on what he described as “personal issues”, the supportive family and that he is in custody for the first time.

44 No complaint is made in this Court regarding any of the findings his Honour made other than those based on the erroneous number of pills said to be involved to Count 2.

45 Two affidavits were read on re-sentence. The applicant’s affidavit dealt with his progress and experience whilst in custody since being sentenced, touching upon issues of the additional stress associated with COVID-19 custodial conditions in terms of visits and lockdowns, as well as his progress in custody with work and rehabilitation.

46 The affidavit of the applicant’s wife outlined family difficulties associated with the applicant’s absence as well as appending a detailed report setting out the diagnosis and special support needs of their son, recently diagnosed with autism spectrum disorder.

48 In light of the Crown’s concession that error was made out little attention was focused on the basis for the ground of appeal. I am content to proceed on the basis that the (inadvertent) reliance by the sentencing judge on a statement of facts that was not agreed to by the applicant, was either a denial of procedural fairness or involved his Honour mistake(ing) the facts: House v R (1936) 55 CLR 501 at pp 501 to 505; [1936] HCA 40.

49 Here, the remarks on sentence make it clear that His Honour had in mind as a critical factor the number of pills when assessing the objective seriousness of Count 2:

50 It is evident that the only information his Honour had regarding the number of pills manufactured was the assertion in the agreed facts that no less than 10,000 pills were the subject of Count 2. This was incorrect. As already acknowledged by the Crown prior to this appeal and as conceded in the written submissions, the agreed number of pills was “3,000 - 4,000”.

51 Pointed observations were made by his Honour regarding the number of pills manufactured by the applicant. Having regard to the magnitude of the number of pills involved in the error, (which of course is not in any way his Honour’s fault), and his observations about them, in context it is clear that the error had the capacity to affect the exercise of his Honour’s sentencing discretion.

52 It is not necessary to determine whether the error in relation to the agreed statement of facts in fact affected the sentencing judgment, only whether it was capable of doing so: Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] to [14]. The reliance his Honour placed on the quantity of pills is demonstrative that the error had that capacity.

53 This Court is required to exercise the sentencing discretion afresh. The duty of the appellate court is to resentence the applicant, unless in the separate and independent exercise of its discretion, it concludes that no different sentence should be passed: Kentwell v the Queen (2014) 252 CLR 601; [2014] HCA 37 at [17]; Young (a pseudonym) v R [2021] NSWCCA 163 at [88]- [95]. This Court does not nominate the area of error, with a focus on whether that error warrants some adjustment to be made to the sentence imposed or not.

54 Neither party challenged any of the findings of fact made by the sentencing judge, other than the acknowledged error regarding the number of pills referable to Count 2. A 15% discount for the utilitarian value of the plea remains appropriate and will be applied.

55 The applicant has a very strong subjective case, even before taking into account the new affidavit material which adds further strength to subjective matters and provides additional bases upon which to find special circumstances. The sentencing judge made a number of favourable findings regarding character, remorse, unlikelihood of re-offending and prospects of rehabilitation.

56 Having said that, the weight to be given to the applicant’s subjective case must not be such as to lead to a disproportionate sentence for the serious criminality involved in the offending.

57 The role of the offender in the drug manufacture is very important to the assessment of objective seriousness. Obviously the offences occurred within a larger criminal enterprise. Where the applicant stood in that broader picture of that drug manufacture operation remains unclear on the agreed facts. He was the principal figure in the manufacture of those pills at those two premises. Clearly his role was an indispensable one in that step in the chain. Drugs were to be provided to the community for immediate consumption. There would be a number of people who would be victims of these acts of the applicant.

58 The purity of the pills was 48.5% and the powder was 79%. Purity is a matter which assists in assessing where in the range the offending can lie.

59 The amount of MDA involved in Count 1 (1,500 pills) brought it within the commercial quantity. Bearing in mind the number of tablets, and also that it was the first occasion on which there was evidence of the applicant having offended, I assess this at below the mid-range for this offence.

60 Count 2 involved 3,000 to 4,000 pills. I consider this to be the lower end of the mid-range for offending of this type.

61 In relation to Count 3, there is some doubt about the actual amount manufactured at the Jordan Springs premises. In those circumstances, considering the applicant's role and the limited period of the offending involved in this charge, I assess the objective seriousness at below the mid-range.

63 There is a detailed report of Dr Furst, psychiatrist, dated September 2019. Dr Furst diagnosed panic disorder, substance abuse disorder and attention deficit hyperactivity disorder ("ADHD"). He also noted reports by the applicant of learning difficulties, speech delay and dyslexia.

64 When the applicant was 13, his mother committed suicide which created ongoing feelings of grief and depression. He had a conflicted relationship with his father who was abusive and a drug user. His grandmother also suicided.

65 The applicant began using illicit drugs at 21, mostly cocaine and MDMA and using alcohol when he felt stressed. He also gambled.

66 Dr Furst noted that the applicant had reflected on his drug offending and was regretful and remorseful.

67 The applicant revealed to Dr Furst that he had been sexually abused as a child. Dr Furst noted this is strongly correlated with mental disorders including, but not limited to, depression, anxiety, PTSD and low self-esteem.

68 Dr Furst concluded that the applicant had a strong genetic loading for depression and substance abuse/dependence and concluded that the applicant’s social deprivation, abuse and neglect, coupled with his averse genetic loading is highly likely to have contributed to his own mental disorder in terms of panic disorder, depressive tendencies and drug and gambling addictions. His sexual abuse victimisation probably also contributed to mental disorder and drug addiction.

69 These conclusions of Dr Furst have been taken into account in assessing the appropriate sentence for the offending.

70 It is clear that the motivation for the offending was financial, in the context of owing people money. The applicant’s business was suffering from financial pressures, his wife fell pregnant with their second child and he was suffering increased anxiety and depression.

71 The applicant has engaged in vocational training and qualified as an electrician at the age of 24 and continued in that role until 2015. As the sentencing judge found, "it is quite clear this man is a worker, quite clear that this man has been very used to providing for himself and ultimately for his family". He has worked in custody as a sweeper, in electrical maintenance and in preparing architectural drawings.

72 There has no doubt been hardship occasioned to him through separation from his young family. He was in jail when his daughter, now three years old, was born.

73 The affidavit material tendered on the appeal indicates additional custodial hardships not foreseeable at the time of the sentence.

74 First, there is the COVID-19 situation which has meant that since March 2020 all visits have been suspended and the applicant has not had physical contact with his family for two years, as set out in his affidavit. COVID-19 lock-ins have meant that the applicant has been confined to his cell for days and weeks on end. This is regardless of positive or negative COVID-19 status. The applicant stated that in the past two years, he has been locked in his cell for 108 days due to COVID-19 and an extra 37 days of “random” lock-ins due to staffing issues.

75 In Taha v R

[2022] NSWCCA 46

[68]

to [69], the Court discussed the impact of COVID-19 on questions of additional unanticipated hardship in custody:

76 Second, there has been additional unanticipated hardship arising from the applicant’s son’s autism spectrum disorder (ASD) diagnosis, as set out in Mrs Borg’s affidavit. A report of Ms Illingworth, psychologist, dated August 2021, sets out the significant challenges in managing the associated behavioural and educational difficulties. He is now seven years old. He needs educational support, speech pathology, psychological intervention and occupational therapy to monitor and assist with gross and fine motor skills and to help address his sensory needs. Mrs Borg is anxious to have the applicant’s assistance with managing these matters, and their complexity no doubt adds a significant burden to family life and so additional emotional distress and guilt to the applicant given his absence from home and his inability to help. It is, to that extent, taken into account as a relevant subjective circumstance in assessing appropriate penalty along the lines discussed by Hodgson JA in R v Girard [2004] NSWCCA 170 at [21].

77 The applicant has continued to demonstrate an excellent work ethic. I have taken into account the very favourable reference from Mr Richmond dated 15 December 2021 setting out the applicant’s progress with skills in CAD software systems amongst others, and his positive attitude to work. This further demonstrates the applicant’s strong prospects of rehabilitation.

78 A letter of the applicant tendered on sentence in 2019 was accepted by the sentencing judge as evidence of remorse. Whilst such material must always be treated with circumspection, the attitude of the applicant set out in this letter has been borne out by his positive actions and attitudes in custody in these intervening years.

79 Like the sentencing judge, I consider his risk of reoffending to be very low and his prospects of rehabilitation to be very good.

80 As the sentencing judge did, augmented by the additional affidavit material I find special circumstances based on a combination of his exceptional family situation, to provide for a suitable period of supervision in the community given previous drug abuse issues, and to properly monitor his ongoing rehabilitation progress.

81 I would specify the following indicative sentences after a 15% discount for the utilitarian value of the plea:

Count 1: 3 years and 6 months with a non-parole period of 2 years and 3 months.

Count 3: (Taking into account the offence on the Form 1): 7 years and 6 months with a non-parole period of 5 years.

82 There will be a large degree of concurrence and a degree of accumulation taking into account totality and the relatively limited time period over which the offending occurred.

83 The aggregate sentence I propose is a minimum term of 7 years with an additional term of 3 years, 6 months so a total term of 10 years and 6 months, backdated to the date the applicant was taken into custody, 27 July 2017.

84 The applicant will be eligible for parole on 26 July 2024. The head sentence will expire on 26 January 2028.

Supreme Court of New South Wales - Court of Criminal Appeal

Borg v R [2022] NSWCCA 70 (1 April 2022)