Taha v R [2022] NSWCCA 46 (4 March 2022)

Last Updated: 4 March 2022

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Taha v R
Medium Neutral Citation:	[2022] NSWCCA 46
Hearing Date(s):	17 September 2021
Date of Orders:	4 March 2022
Decision Date:	4 March 2022
Before:	McCallum JA at [1] Walton J at [3] Fullerton J at [85]
Decision:	(1) Grant leave to appeal and allow the appeal against sentence with respect to the aggregate sentence imposed. (2) Quash the sentence imposed in the District Court on 5 November 2020. (3) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 4 years from 5 November 2020, with a non-parole period of 2 years and 3 months from 5 November 2020.
Catchwords:	CRIME — appeals — appeal against sentence —sentencing judge erred in the consideration of pre-sentence custody – applicant’s borderline intellectual functioning – moral culpability – understanding of offending – re-sentence – independent exercise of discretion – findings on objective seriousness at first instance – applicant’s subjective factors – applicant’s mental condition – dietary considerations – hardships – conditions in custody – COVID-19 – rat infestation – objective gravity of offending – general deterrence – special circumstances – sentence quashed – aggregate term of imprisonment imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 2012 (NSW)
Cases Cited:	AB v R [2014] NSWCCA 31 Aslan v R [2014] NSWCCA 114 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154 Doudar v R [2021] NSWCCA 37 Elchiekh v R [2016] NSWCCA 225 House v R (1936) 55 CLR 499; [1936] HCA 40 Jackson v R [2021] NSWCCA 15 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342 R v Douihi [2000] NSWCCA 521 R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 R v Nykolyn [2003] NSWCCA 229 R v Wright (1997) 93 A Crim R 48 R v Youkhana [2005] NSWCCA 231 RO v R [2019] NSWCCA 183 Sutton v R [2016] NSWCCA 249 Turnbull v R [2019] NSWCCA 97 Young (a pseudonym) v R [2021] NSWCCA 163 Zaky v R(Cth) [2017] NSWCCA 141
Category:	Principal judgment
Parties:	Ahmed Taha (Applicant) Regina (Respondent)
Representation:	Counsel: Mr A Chhabra (Applicant) Ms E Wilkins SC (Respondent) Solicitors: Kadadi & Co (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2019/303076
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal
Date of Decision:	5 November 2020
Before:	Latham ADCJ
File Number(s):	2019/303076

JUDGMENT

1 McCALLUM JA: I have had the benefit of reading the judgment of Walton J in draft. I agree with the orders proposed by his Honour for substantially the reasons he has stated, subject to the following qualifications. As to the issue of moral culpability, I cannot say that I would not have found some reduction on account of the applicant’s mental health, which appears to be very much a consequence of what happened to him in Lebanon as a child. Child sexual assault is known to cast a long shadow and often leads to drug abuse and mental health problems. However, I agree that, as the sentencing judge was not asked to take the psychiatric evidence into account on that basis, it cannot be said that there was error in failing to do so.

2 For substantially the same reason, and notwithstanding Ms Wilkins’ careful review of the medical notes, I am less sanguine about the adequacy of the mental health support and treatment the applicant has received whilst in custody. I agree with Walton J that the rat plague and the hardships imposed on prisoners as part of the necessary response to the COVID-19 pandemic are factors that warrant reducing the sentence that would otherwise be imposed.

3 WALTON J: By a Notice of Application for Leave to Appeal filed on 20 May 2021, the applicant, Ahmed Taha, sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 2012 (NSW) against a sentence imposed upon him in the District Court of New South Wales in Sydney on 5 November 2020.

4 The applicant pleaded guilty to four charges with respect to the supply of a prohibited drug, namely, cocaine (“the offences”). The offences were committed between July and September 2019. He sought that three additional drug offences be taken into account by way of a Form 1 attached to sequence 8 of the charges. There were three further sequences that were placed on a Section 166 Certificate which related to driving offences to which the applicant pleaded guilty.

5 The applicant was sentenced by Acting Judge Latham (“the sentencing judge”) to an aggregate sentence of 5 years’ imprisonment with a non-parole period of 2 years and 6 months to commence on 5 November 2020 with the non-parole period expiring on 4 May 2023 and the head sentence to expire on 4 November 2025. A finding of special circumstances was made by the sentencing judge.

6 The Crown helpfully provided a table setting out the specific offences, maximum penalties and indicative sentences provided by the sentencing judge. That table appears below:

Sequence H141462002	Offence	Maximum Penalty	Indicative Sentence
8 1 and 2 14	Supply prohibited drug on an ongoing basis for financial or material reward s 25A(1) Drug Misuse and Trafficking Act 1985	15 years imprisonment	3 years
	Form 1 attached to Seq 8:
	• Knowingly take part in the supply of a prohibited drug s 25(1) Drug Misuse and Trafficking Act 1985 • Possess prohibited drug s. 10(1) Drug Misuse and Trafficking Act 1985	15 years imprisonment 2 years imprisonment
6 and 7	Supply prohibited drug small s 25(1) Drug Misuse and Trafficking Act 1985	15 years imprisonment	18 months
9	Supply prohibited drug indictable s 25(1) Drug Misuse and Trafficking Act 1985	15 years imprisonment	22 months
11, 12, 13 (on s 166 certificate)	Drive whilst suspended		s. 10A conviction without further penalty

GROUNDS OF APPLICATION FOR LEAVE TO APPEAL

7 The applicant sought leave to appeal with respect to three grounds as follows:

Ground 1: The sentencing judge erred in the manner she considered the applicant’s pre-sentence custody.

Ground 2: The sentencing judge failed to provide proper reasons as to how the applicant’s borderline intellectual functioning was taken into account on sentence.

Ground 2A: The sentencing judge failed to appropriately take into account the applicant’s borderline intellectual functioning.

8 It may be noted that the respondent conceded that ground 1 was made out but contended that grounds 2 and 2A were not made out.

FACTUAL BACKGROUND

Objective Factors

9 A statement of agreed facts was tendered at sentence. The objective facts are summarised as follows:

(1) The applicant used telephone service 0420 906 825 to negotiate and arrange the supply of cocaine with a known person. In addition to supply to the known person, the applicant facilitated drug supply to over 30 customers within the St George, Inner West, Eastern Suburbs and Sydney CBD.
(2) On Saturday 22 June 2019, the applicant negotiated the supply of two bags of cocaine with a total of 1.14 grams for $500 (Sequence One). The supply was completed by the co-offender Ms Brianna Costigan.
(3) On Friday 28 June 2019, the applicant negotiated the supply of a bag of cocaine for $300 (Sequence Two). The drugs were delivered by the applicant’s co-offender. The bag contained 0.42 grams of cocaine.
(4) On 3 July, 12 July and 18 July 2019, the applicant was involved in three supplies of cocaine within a 30-day period (Sequence Eight). The total amount of these 3 supplies was 2.92 grams.
(5) On 1 August 2019, the applicant supplied 2 bags of cocaine containing 1.44 grams for $500 (Sequence Six).
(6) On 7 August 2019, the applicant negotiated and supplied a witness an “8 Ball” of cocaine for $1,200. The total amount of cocaine supplied was 3.12 grams (Sequence Seven).
(7) Between 1 July 2019 and 23 September 2019, the applicant contacted 30 separate customers for the supply of cocaine. The applicant would either complete the supply of drugs himself or send a runner. The amount of cocaine directly supplied by the applicant was 50 bags with a minimum weight of 30 grams. The amount of cocaine directed to be supplied by the offender was 35 bags with a minimum total weight of 21 grams. The total amount either directed or actually supplied during this period is 51 grams (Sequence 9).
(8) The total amount of cocaine supplied by the applicant (both directly and negotiated) was approximately 60 grams.
(9) The applicant was sent via mail a notice of suspension by the Roads and Maritime Service due to unpaid fines. Surveillance of the applicant indicated he drove on three occasions whilst suspended being 12 September 2019 (Sequence 11), 18 September 2019 (Sequence 12), 19 September 2019 (Sequence 13).

Subjective material

10 Both parties provided summaries of the subjective material before the sentencing court which were largely consistent. The Crown provided, in my view, a fuller and more accurate summary which forms the foundation for the following summary of the subjective material on sentencing:

(1) The applicant was 25 years old at the time of the offending and 27 years old when he was sentenced.
(2) The supply of cocaine greater than indictable and less than commercial quantity (Sequence 9) was committed whilst the applicant was on a Community Corrections Order (“CCO”) made on 14 August 2019, for an offence of possess/use prohibited weapon.
(3) The applicant had a criminal history for drug-related offending going back to 2012, including a conviction in 2015 for ongoing supply for which he had been sentenced to full-time imprisonment.
(4) In a report dated 2 November 2020, a psychologist, Mr Chadi Abbas, stated the following:

(a) The applicant was diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”) at the age of 5 years old.
(b) During his early school years, the applicant had learning difficulties and dyslexia.
(c) When aged around 5-6, the applicant travelled to Lebanon with his family for a holiday, staying with grandparents; during this period, he was sexually abused by a neighbour who was aged 40-50 years. He was deeply affected by the sexual abuse, causing him severe anxiety, depression and sleeping problems.
(d) It was only in his early twenties that the applicant acquired a basic ability for reading and writing.
(e) The applicant first experimented with illicit substances at age 18, when he smoked cannabis; he was smoking an average of 20 to 30 “cones” per day. At the age of 19, he started to abuse Benzodiazepine Valium, averaging 10 tablets per day. He was abusing this medication until the first time he was incarcerated; at the time of the report he took prescription Valium once or twice a week for his anxiety and panic attacks. At the age of 19, he also first experimented with MDMA, but only used it recreationally. At age 20, he first experimented with cocaine, on average using three grams over a weekend. At age 20, he also first experimented with crystal methamphetamine, using an average of 8 to 10 “points” per day until he was incarcerated. At the age of 26, he first experimented with heroin, smoking half a gram a day for 7 months.
(f) Using drugs gave the applicant a feeling of numbness, taking away the pain and anger he experienced regarding his sexual abuse. He was also traumatised from his time in gaol.
(g) The applicant attended rehabilitation at Odyssey House for 4 months, and then completed over 30 hours of drug recovery and outreach programs.
(h) The applicant reported that all the traumas and complications he endured in his life lead him to use and sell drugs. He knew this was the wrong thing to do at the time, but he felt as though he had no choice in order to make a living. He got in the wrong crowd and started doing “stupid stuff”. He felt used amongst these crowds and felt as though his brain was not fully developed and was getting “ripped off” by them.
(i) The applicant felt stupid for even considering going through with the offence and regretted his actions. He was deeply remorseful.
(j) Various psychological tests were administered. The applicant’s general cognitive ability, including verbal comprehension, perceptual reasoning, concentration, and ability to exert mental control fell within the borderline range of intellectual functioning. His overall thinking and reasoning abilities exceeded those of only 3% of individuals of his age.
(k) Mr Abbas’ opinion was that the applicant suffered from chronic PTSD (single episode), generalised anxiety disorder, and major depressive disorder (single episode, moderate severity).
(l) Mr Abbas opined that the applicant’s impulsive and externalising behaviours were at least partially a reflection of his intelligence quotient and poor adaptive functioning, and this was a contributing factor in the offences. He opined that there was a psychological nexus between the applicant’s condition and the offences.
(m) Finally, Mr Abbas stated that participation in intensive treatment would likely reduce the applicant’s risk of recidivism, and that with ongoing treatment, his condition should improve considerably, by ameliorating the disorders, and reducing the probability of the occurrence of a similar incident.

(5) A “Mindways” psychological report authored by a psychologist, Anne-Marie De Santa Brigida from the 2015 sentencing proceedings (“the Mindways report”) was generally supportive of Mr Abbas’ report, although it did note that the applicant was not diagnosed with ADHD in childhood, although the applicant reported consistent symptoms. Further, a diagnosis of PTSD was deferred. After administration of depressive and anxiety inventories (self reporting tools), the report did not find the presence of clinically significant anxiety. While it did find clinically significant depression, this was to be viewed within the context of the applicant’s previous incarceration. Under “Conclusion” it was noted that there was no assertion that the applicant was not cognisant of his actions at the time of the previous offences.

FINDINGS OF THE SENTENCING JUDGE

11 The sentencing judge commenced her reasons for sentence by a discussion of the offending and maximum penalty for the offences. With respect to those observations, the sentencing judge noted, in particular:

(1) In relation to sequence 9 there were conversations captured on the applicant’s mobile phone with up to 30 different customers and the applicant regularly sent out bulk messages to his customer base advertising the fact that he had cocaine ready to sell.
(2) The offences were committed while the applicant was the subject of a CCO.
(3) Her Honour opined that, when viewed in terms of their objective gravity, the offences fell below the mid-range of offences although her Honour would not class them as trivial or low range offences.

12 The sentencing judge allowed a 25% discount for the applicant’s pleas of guilty.

13 As to subjective considerations, her Honour observed that “the most concerning aspect of the sentencing exercise” was the fact that in July 2015 the applicant was sentenced to a term of imprisonment of 2 years and 3 months with a non-parole period of 1 year and 2 months in relation to the supply of drugs on an ongoing basis. Her Honour also observed that further offences of organising, conducting and assisting “drug premises” and supply of prohibited drugs on an ongoing basis and knowingly or recklessly directing a criminal group were taken into account on a Form 1. Her Honour also observed that the applicant had other convictions with respect to offences of a domestic violence character.

14 As to subjective circumstances, in summary her Honour made a number of findings as follows:

(1) The applicant resided with his parents in Sydney. He maintained that he had a strong supportive relationship with his family although the Sentencing Assessment Report noted that he had not been as transparent with his family regarding his offending “as might be desirable”.
(2) The applicant had not been gainfully employed other than by way of helping his father in the course of his father’s business. He was making efforts to become qualified to address the need to earn money on a lawful basis.
(3) Mr Abbas’s report had assessed the applicant in the mid-range of depressive symptoms in the two weeks prior to testing, in the severe range for anxiety symptoms in the four weeks prior to testing and in the border line range in terms of his verbal comprehension, perceptual reasoning and working memory processing speed.
(4) Her Honour observed that this seemed to “reflect the offender’s early diagnosis of ADHD and problems in the course of his education with literacy and numeracy”. She recognised that the applicant had, on the report of Mr Abbas, a long history of suffering anxiety and depression, as well as a reasonably long history of polysubstance abuse for which he had sought to engage in programs in order to address the issue.
(5) By reference to the Mindways report, her Honour identified that the applicant would meet the criteria for a conduct disorder of an adolescent onset type with “a low level of verbal, non-verbal and IQ abilities”. It was observed that the report confirmed that the applicant had not been diagnosed with ADHD in childhood but that testing evidenced symptoms of that disorder and the applicant was still medicated for anxiety and depression.

15 Deriving from the analysis of these reports, her Honour made the following finding which was the subject of submissions relating to the second and third grounds of the appeal. That finding was as follows:

It is however relevant to note that whilst these reports impact upon the sentencing exercise to the extent they are part of the offender’s subjective case, the offender’s legal representative does not suggest, and indeed in my view could not suggest, that the offender’s previous psychological difficulties reduce his moral culpability for offending.

16 Her Honour made the following findings regarding rehabilitation and reoffending:

(1) The applicant had completed the assessment stage of the Odyssey House program in recent times.
(2) The prospects for rehabilitation were guarded although:

There are reasons to hope that the offender is more committed now than perhaps he was in the past to abstain from the use of illicit drugs. He is presently 27 years of age and has already, as I have said, involved himself in quite serious criminality at a relatively early age of his adult life.

(3) The applicant displayed little insight into his offending; a factor contributing to the finding that his rehabilitation prospects were guarded. The applicant was assessed at a medium to high risk of reoffending.

17 Her Honour then turned to the question of pre-sentence custody. That finding featured in ground 1 of the application for leave to appeal. Her Honour’s finding in that respect was as follows:

It is conceded that the s 5 threshold has been crossed. The submission is that not only should the 70 days in pre-sentence custody be taken into account, but some 4 months of residential rehabilitation at Odyssey House should be factored in the equation. In those circumstances I am prepared to allow a period of 6 months by way of pre-sentence custody.

18 The sentencing judge found special circumstances by virtue of the applicant’s need to access programs which will further his rehabilitation. It was observed that those programs had been undertaken in a preliminary sense and the applicant should be supervised for a more extensive period in the community.

19 Her Honour then turned to the question of aggregate sentence.

20 The sentencing judge then dealt with the particular issues of sentencing with which her Honour was concerned commencing with the following observation: “In those circumstances I have arrived at the following indicative sentences, taking into account the objective and subjective factors and the need for both specific and general deterrence”.

21 After discussing particular aspects of the sentencing for the offences, her Honour turned to the aggregate sentence. Her reasons in that respect involved some adjustment during the course of the delivery of her judgment as well as an exchange with counsel. I set out a passage from the judgment as it also has a relationship to ground 1 of the appeal. That extract is as follows:

In those circumstances I would arrive at an aggregate sentence of five years’ imprisonment with a non-parole period of three years. Taking into account six months pre-sentence custody, I reduce that non-parole period to two and a half years.
Notwithstanding the submissions from the offender’s legal representative, the imposition of an intensive corrections order is outside the scope of this sentencing exercise. Accordingly I convict the offender and I impose a sentence of five years’ imprisonment to date from--
Sorry, I’ll just have to revise that somewhat. I was going to backdate the sentence to allow for the pre-sentence custody which would not have changed the non-parole period from three years, but I think the better circumstance would be, given that your client was not in fact in custody at the time of sentence, I will date the sentence from today but reflect the pre-sentence custody in the reduction of the non-parole period, so let me just revisit that.
--as I said, an aggregate sentence of five years, a non-parole period of three years which I reduce to two and a half years to account for the pre-sentence custody. The five years shall date from today 5 November 2020 expiring 4 November 2025 and the non-parole period dating from 5 November 2020 expiring 4 May 2023.
Can you check those dates? So the aggregate sentence runs from today, the non-parole period runs from today but as I said takes into account six months of pre-sentence custody, so the six months runs from 5 November to 4 May 23. I think that’s correct.
In relation to the s 166 certificate offences I direct that there be no penalty imposed in view of the sentence that I have already imposed. Anything else? Anything that you want to say by way of correction or amendment?
PATERSON: On my calculation I believe that’s correct.
HER HONOUR: That’s my calculation as well, but I’m always surprised at how many times I get it wrong.
PATERSON: I don’t believe there’s anything further.

GROUND 1: The sentencing judge erred in the manner she considered the applicant’s pre-sentence custody

22 Pursuant to s 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), the sentencing judge was required to take into account, in sentencing the applicant, any time for which the applicant had been held in custody in relation to the offences.

23 It was open for her Honour, as she did in sentencing the applicant, to reduce the sentence imposed by the same period as the offender had served in pre-sentence custody: R v Nykolyn [2003] NSWCCA 229 at [33] (her Honour may have alternatively backdated the aggregate senence for a period equivalent to the amount of pre-sentence custody served). It was also available to the sentencing judge, in taking account of pre-sentence custody, to take into account the time the applicant spent in a quasi-custodial sentence such as residential rehabilitation: R v Delaney [2003] NSWCCA 342; (2003) 59 NSWLR 1; [2003] NSWCCA at [23].

24 Her Honour’s reasons for sentence make it clear that the pre-sentence custody was taken into account but the reduction for pre-sentence custody was confined to the non-parole period with no allowance being made with respect to the head sentence. That approach constituted error: R v Douihi [2000] NSWCCA 521 at [27]; R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 at [25]; and R v Youkhana [2005] NSWCCA 231 at [10].

25 In my view, the applicant was correct to submit that the error vitiated the exercise of the sentencing discretion. It could not be described as a mere inadvertent misstatement or slip: see Zaky v R(Cth) [2017] NSWCCA 141 at [55]. Her Honour did apprehend the need to make a correction but the effect of that correction was merely to entrench the error.

26 It may also be concluded that the error had a material bearing on the aggregate sentence imposed: see AB v R [2014] NSWCCA 31 at [68] (per R A Hulme J with whom Beazley P and Schmidt J agreed); Sutton v R [2016] NSWCCA 249 at [37] (per Gleeson JA with whom Fagan and N Adams JJ agreed); and Elchiekh v R [2016] NSWCCA 225 at [32]- [33] (per Price J with whom Button and Fagan JJ agreed) (see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (“Kentwell”)).

27 Having found error of this kind in the sentencing judgment, this Court must exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the factors, inter alia, the Sentencing Act requires to be considered: Kentwell at [42]–[43]; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [60], [86] and [128]. Such an exercise involves the exercise of an independent discretion with a sentence fixed which is appropriate having regard to the offender and the offence.

28 That said, the process of resentencing will be assisted, in my view, by considering the remaining two grounds of the appeal which I will turn to collectively before turning specifically to the question of resentencing.

GROUND 2: The sentencing judge failed to provide proper reasons as to how the applicant’s borderline intellectual functioning was taken into account on sentence

GROUND 2A: The sentencing judge failed to appropriately take into account the applicant’s borderline intellectual functioning

29 The applicant advanced the following submissions in support of these grounds:

(1) The report of Mr Abbas demonstrates that the applicant fell within the borderline range of intelligence and that his overall thinking and reasoning ability exceeded those of only 3% of an individual his age.
(2) In the same report it was opined that the applicant would experience great difficulty in understanding, responding to and organising information in his mind and that the applicant was impulsive and engaged in externalising behaviours, both of which were partially a reflection of his intelligence quotient and poor adaptive functioning.
(3) The psychologist opined that his intellectual deficits and the corresponding limitations and behaviours were a contributing factor in the offending. The applicant correctly referred to in this respect that mental disability may be taken into account in the sentencing exercise: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (“De La Rosa”) per McClellan CJ at CL (with whom Simpson J and Barr AJ agreed) (see also R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 at [22]).
(4) Reliance was placed upon the following exchange with counsel for the applicant in the sentencing proceedings:

HER HONOUR: Can I just make one thing clear though, just so that I’m not mistaken, are you suggesting that the psychological assessments, such as they are, ought to be brought to bear upon his moral culpability, or are you suggesting that it’s simply part of his subjective case?
RIZK: No, I’m more suggesting it’s part of his subjective case.
HER HONOUR: Right. Because, given his previous conviction and incarceration for similar offence, you could hardly say that he wasn’t aware of the consequence of his –
RIZK: No, I wouldn’t make that submission to you.

(5) The applicant contended that error was demonstrated in this exchange with counsel because the sentencing judge had suggested that the use of the “psychological assessment” was a binary choice between two categories, namely, the applicant’s moral culpability or his subjective case and that, accordingly, the sentencing judge had conflated the multiple ways in which the psychological findings might be used in sentencing the applicant This was particularly so in circumstances where the sentencing judge had accepted the applicant was of low level verbal, non-verbal and IQ abilities with anxiety and depression. It was further contended that it is unclear in the sentencing remarks how those findings as to intellectual functioning were taken into account in sentence.

(6) It was insufficient for the sentencing judge to take into account the limited intellectual functioning as part of the applicant’s subjective case without more because cognitive limitations can both mitigate and aggravate a sentence (in the latter case where it is determined that the protection of the community needs greater emphasis in the sentence). It was, therefore, argued that the sentencing judge had not provided adequate reasons as to how the applicant’s limited intellectual functioning was to be taken into account.

(7) The second limb of the applicant’s arguments, in this respect, was that the sentencing judge failed to use the applicant’s limited intellectual functioning to lessen the role of general and specific deterrence.

(8) It was accepted that the applicant did not, on the evidence, have an “intellectual disability” but rather the applicant’s IQ placed him in the “borderline range”. It was unnecessary for the abnormality in that respect to be severe to warrant a moderation in the applicability of deterrence: R v Wright (1997) 93 A Crim R 48 per Hunt CJ at CL.

(9) Whilst the prior conviction for similar offending by the applicant might ameliorate some of the effect of the moderation of deterrence, his prior conviction could not extinguish the moderation altogether. As was pointed out by Simpson J in Aslan v R [2014] NSWCCA 114 at [34], there is no presumption that just because an offender suffers from a mental impairment, there is a reduction in general or specific deterrence but it remained necessary for the sentencing judge to examine the relevant facts to determine whether in this specific case, mental condition had the consequence complained of.

(10) The sentencing judge failed to undertake that task and took a “bare invocation” of a diagnosis of low intellectual functioning without considering how the applicant’s conditions might have contributed to the offence as was discussed in Mr Abbas’s report. Had the sentencing judge done so, it would have led to a degree of moderation of both specific and general deterrence and, hence, a lesser sentence.

30 The sentencing judge plainly recognised the applicant’s borderline intellectual functioning and took that into account in her sentencing of the applicant. Her Honour referred to both the psychological reports and the sentencing assessment during the course of her reasons for sentence. She stated that these reports impacted upon the exercise to the extent that they were part of the offender’s subjective case.

31 The confinement of her Honour’s consideration of the applicant’s mental condition to part of her consideration of the instinctive synthesis of the ultimate sentence was a direct product of a concession made by counsel for the defendant in the sentencing hearings. There was no misunderstanding by her Honour in the approach she adopted as to the nature of that concession.

32 Counsel for the applicant in these proceedings did not deny that that concession had been given below but rather submitted that the sentencing judge had presented counsel with a binary choice between two categories such that counsel for the applicant below was confronted with a choice between the applicant’s mental condition featuring either in the applicant’s subjective case or his moral culpability. It was submitted the sentencing judge conflated several ways in which the psychological findings could be used.

33 I do not accept that her Honour fell into error in this respect. First, whilst her Honour posed the question in what may appear to be a binary fashion by the use of the conjunction ”or”, it is apparent that her Honour was, in substance, testing whether counsel for the applicant was, in fact, advancing a proposition that the “psychological assessment” went to the applicant’s moral culpability because of his prior conviction and incarceration for similar offending. Secondly, and assuming that binary option was advanced to counsel for the applicant, it was not incumbent upon him to accept such a binary proposition. It would be commonplace for counsel in those circumstances to respond by respectfully indicating that the applicant relied both considerations.

34 The applicant’s submission that her Honour’s reasoning failed to engage with how the applicant’s limited intellectual functioning might go to subjective considerations was unconvincing. Whilst cognitive limitations may mitigate or aggravate a sentence, it is clear, when her Honour’s judgment is looked at as a whole, that she was considering this factor as one mitigating the sentence to be imposed. Beyond that, her Honour’s analysis formed part of her instinctive synthesis in reaching a final sentence.

35 It may be observed, before turning to the question of deterrence, that there is substance in the sentencing judge’s observation, that the applicant would find it difficult to sustain a case for reduction in his moral culpability arising from the fact of his borderline intellectual functioning. Her Honour emphasised from the outset of her reasons that the offences were not the first occasion that the applicant had committed offending of the type found in the offences. As the Crown correctly pointed out, the applicant had some sophisticated understanding as to the consequences of committing the type of offending he was engaging in as illustrated by him being on the lookout at the time he was engaging in it. He actually indicated that he was aware he was under police surveillance. I also agree that the similar offending would have provided him with some knowledge of the gravity of his actions.

36 It may be further observed that, whilst her Honour did have regard to the applicant’s borderline intellectual functioning as part of the instinctive synthesis approach to the actual term of sentence, the applicant also benefited from a finding of special circumstances based on the applicant’s need for treatment in the community which must, in my view, be taken to corelate with psychological treatment associated with his mental conditions including rehabilitation with respect to the same.

37 Finally, no submissions were made to the sentencing judge on the applicant’s behalf regarding specific or general deterrence which her Honour was found to be required in sentencing the applicant. In Jackson v R [2021] NSWCCA 15 at [88], an alleged error in relation to a sentencing judge’s approach to an applicant’s mental condition was not found to have been established when, during the proceedings on sentence, no submissions were made that the mental condition contributed to the offending or had an impact on deterrence. In the circumstances it was found the sentencing judge gave careful consideration to the expert reports despite the “paucity of the applicant’s submissions”.

38 Overall, the principles from De La Rosa were not argued in the sentencing proceedings and the matters raised in the psychological assessments were in the applicant’s subjective case. Accordingly, her Honour took that course in her reasons for sentence. The only mention on behalf of the applicant of him being a potential danger to society was in the context of a request for a finding of special circumstances and based on his risk of re-offending.

39 In the circumstances, I would reject Grounds 2 and 2A of the application for leave to appeal.

RESENTENCING

40 The applicant is to be sentenced for four separate offences all of which carried a maximum penalty of 15 years’ imprisonment. There were three matters on a Form 1 which required greater weight to be given to specific deterrence and punishment. Further, an aggravating factor for sequence 9 was that the applicant had been subject to a CCO for part of the time of the offending and, in fact, had been in court for sentence during the period of offending generally.

41 It was recently observed in Young (a pseudonym) v R [2021] NSWCCA 163 at [82]- [95] (per Beech-Jones J with whom Basten JA agreed), that the following approach to resentencing was required by the judgment of the plurality in Kentwell.

(1) The Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome (in the case of the establishment of one of the categories of House error: House v R (1936) 55 CLR 499; [1936] HCA 40) but instead it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh such that, even if the sentence below appeared to be within range (albeit resulting from a legally flawed determination) a sentence reflecting that view was not warranted in law unless, in the exercise of the Court of Criminal Appeal’s independent discretion, it is determined that it was the appropriate sentence for the offender and the offence.
(2) With respect to the findings in the sentencing judgment, the subject of appeal and the sentence imposed at first instance, and adopting the judgment of Simpson AJA (with whom Ierace J agreed, Wilson J not deciding), in Turnbull v R [2019] NSWCCA 97 at [44]- [46], the Court of Criminal Appeal must take into account the purposes of sentencing and any legal sentencing requirements as well as any agreed or determined facts, and assess whether the criminality involved factors personal to the offender. It is appropriate to adopt any relevant findings of disputed fact by the trial judge, just as it is appropriate to adopt assessments or evaluations such as the objective gravity or the offender’s prospects of rehabilitation which have not been the subject of challenge (see also RO v R [2019] NSWCCA 183 per Bathurst CJ, N Adams J and Beech-Jones J agreeing at [81]).
(3) Where the court independently exercises a discretion to resentence in relation to an aggregate sentence, the court may reach a conclusion that, inter alia, the same sentence is the appropriate sentence. In such a case, the court is not required to resentence (see Kentwell at [40]-[43]).

42 Bearing in mind the second of those principles, the following findings of the sentencing judge may be adopted for the purposes of this resentencing exercise:

(1) the offences were below mid-range of objective seriousness but not trivial or low range;
(2) the applicant’s prospects of rehabilitation are at best guarded and he is of medium to high risk of reoffending (I will later find the additional evidence called by the applicant in these proceedings, in that respect, does not warrant a different conclusion);
(3) special circumstances exist because the applicant needs access to further supervised rehabilitation programs in the community.

43 It is tolerably clear that the applicant did not seek to retract the concession made at first instance that the applicant’s mental health issues did not reduce his moral culpability for the offending, even though it was submitted that those factors were relevant to his general subjective case. Different positions seem to have been adopted with respect to the question of deterrence to which I will return.

44 Whether or not that is the ultimately correct analysis of the applicant’s position, in my view, and for the reasons I have given above, I do not consider the applicant’s mental health issues did reduce his moral culpability for offending in light of his prior offending and the circumstances of the current offences.

45 The applicant read on the application for leave to appeal, and for the purposes of resentencing, two affidavits of his solicitor, Rayan Kadadi, dated 6 and 7 September 2021 respectively.

46 The respondent relied upon three affidavits of a solicitor, Philippa Winston, who gave instructions to Ms E Wilkins SC who appeared for the Crown. There are two affidavits dated 10 September 2021 and a third affidavit dated 14 September 2021.

47 The applicant contended that the evidence brought by the applicant in these proceedings (on the usual basis) established for purposes of resentencing:

(1) the applicant’s mental health has deteriorated in the prison environment;
(2) the applicant had not been provided adequate mental health support or treatment in the prison environment;
(3) the applicant had experienced certain hardships in custody not anticipated at the time of sentencing:

(a) being placed at Wellington Correctional Centre at the time of a rat outbreak in that prison and Central Western New South Wales,
(b) total lack of family in-person family visits, initially due to his parents’ inability to drive from Sydney to Wellington and, thereafter, COVID-19 related restrictions on such visits,
(c) his diet requirements and issues had not been met within the prison setting, thereby aggravating his stomach condition,
(d) whilst at Parklea prison, the applicant’s friend committed suicide in his cell, causing further distress to and mental health deterioration of the applicant,
(e) the increased threat of and stress at the spread of the delta variant of COVID-19;

(4) having completed various programs whilst in prison, the applicant’s prospects of rehabilitation are now better than “guarded”.

48 Each one of these contentions will be considered in turn although the first two matters will be grouped together for convenience.

Applicant’s mental health

49 Ms Kadadi stated in her affidavit of 6 September 2021, that the applicant advised her that, notwithstanding a request to see a psychologist when he arrived at the Wellington Correctional Centre, he had not seen a psychiatrist over a period of approximately one month and he became anxious. Further, it was stated that, despite numerous requests to various officers in the correctional centre, the applicant only saw a psychologist four or five months after being incarcerated. Ms Kadadi’s evidence was that the applicant only saw a psychologist once via audio visual link for about an hour and had since requested another session to no avail. He made contact with the Ombudsman to facilitate his request.

50 After referring to the diagnosis of Mr Abbas, Ms Kadadi indicated that she had been advised by the applicant that he had not received any sort of medication to help his anxiety.

51 Ms Kadadi also stated that she was instructed by the applicant that he had panic attacks regularly and heard voices causing him worse anxiety and that he felt depressed. He said to her that his symptoms were worsening.

52 There is substance to the respondent’s challenge to the reliability of this evidence which was given under instructions or on information or belief basis in the absence of any supporting medical evidence, particularly, as in this case, where Justice Health medical records (annexed to one of the affidavits of Ms Winston of 10 September 2021), set out the nature of the applicant’s custodial, medical and psychiatric treatment since the date of sentence and paint a different picture.

53 Ms Wilkins provided a painstaking analysis of the records produced by Justice Health as to the psychiatric care of the applicant. Those submissions were as follows:

The records reveal that the applicant is receiving regular checks and treatment from Justice Health and is under the care of a consultant psychiatrist, Dr Eugene Ho. Dr Ho saw the applicant on 12 August 2021 where the symptoms recorded were anxiety and panic. The applicant requested anti -depressants and was prescribed citalopram for these conditions. There is no record of the applicant complaining of hearing voices. A mental health nurse recorded on 12 August 2021 that the applicant showed no signs of disturbance or of delusions. These notes record the applicant's complaints regarding panic attacks and note the fact that he had regressed in his prison classification due to behavioural changes. The notes also record that it would benefit him to have mental health input before he attempted to be reclassified. The plan for the applicant is listed as being "D/W Dr. Ho" presumably meaning "discuss with Dr. Ho" and MHNP (mental health nurse practitioner) and the fact that the applicant had been prescribed citalopram. By 16 August 2021, the notes record the applicant telling nursing staff he was "fine". On 28 August 2021, the applicant complained of recent chest pain and there is a note about him having an ECG in the main clinic. About two hours later he said his pain was the same, but on observing him in his cell he showed no signs of pain and was recorded as "independently mobilizing in cell”.
The medical records also indicate that the applicant had in previous months been requesting to see a psychologist and complaining about the delay. On 25 March 2021, it was explained to him that Justice Health do not employ psychologists and that an appointment needs to be arranged through Corrective Services. He was given advice as to how to do that. It was noted that there were no risk issues reported with respect to him. On this date the applicant confirmed that he wanted to see a psychologist, not a psychiatrist. On 31 March 2021, the applicant again complained about having to wait to see a psychologist. He did not want to discuss his issues at the Justice Health clinic and the notes again record that he did not want to speak to a psychiatrist; only a psychologist. The notes confirm that the applicant is on the waiting list to see a psychologist but that his classification had been changed from routine to non-urgent. By 22 April 2021 the notes record that the applicant had seen a psychologist, although he complained he had to speak to a commissioner to get an appointment. These notes specifically record that the applicant "denies auditory and visual hallucinations". Part of his treatment plan was recorded as to continue with psychology service. Thereafter, the applicant was transferred to Parklea Correctional Centre where he came under the care of a psychiatrist, Dr Ho.

54 I agree with the submission advanced by the Crown that the Justice Health records indicate the applicant has readily available psychiatric treatment support and is able to consult a psychiatrist should he believe he was in need of further treatment while waiting to see a psychologist. In many respects, any inconvenience he may have suffered was at his own hands. He has refused to receive psychiatric help that is available to him. Further, a reason for the delay in seeing a psychologist appears to be that the applicant is not regarded as in urgent need of psychological treatment. There was no obvious need to prioritise the provision of psychological services consistent with general community practice.

55 In my view, it follows that the applicant has not established that he has been provided inadequate mental health support or treatment in prison and this factor cannot, therefore, reduce the sentence imposed upon him.

Dietary considerations

56 The applicant informed Ms Kadadi that he had issues with his diet and suffered from gastroesophageal reflux disease. He also stated that he had taken five months to get the right stomach medication and had not been placed on the appropriate diet. He stated he continued to feel discomfort.

57 In this respect, Justice Health records note that, on 17 May 2021, the applicant had seen Dr Mark Tattersall for review. On that date, Dr Tattersall explained to the applicant that the specialist gastroenterologist he had seen had not recommended a special diet for him or referred him to a dietician and that the specialist’s advice was that the applicant needed to stop smoking.

58 As the applicant stated himself, he was in receipt of “the right stomach medication”, albeit after some delay.

59 On that basis, the evidence does not permit a conclusion that the applicant did not have readily available medical treatment in custody or that there is some mistreatment of him with respect to his medical condition.

60 There is no basis on the evidence to take this factor into account on resentencing.

Rat plague

61 It was common ground that, in May 2001, the applicant was housed in the Wellington Correctional Centre during which time there was a severe rat plague which impacted upon the correctional centre. The applicant advised that he lived in these conditions for approximately three months which included mice chewing on his shoes, eating his food, crawling on his face, nibbling on his feet and depositing faeces on his bed.

62 The applicant contended that these conditions of imprisonment were more onerous than usual and that they should therefore be taken into account as a circumstance applicable to sentencing.

63 On the evidence led in these proceedings, the applicant did suffer hardship as a result of the rat plague. In my view, it fits into the category of “onerous custodial status” which was mentioned in Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [95].

64 I do not consider that it may be inferred, as submitted by the Crown, that the extent of the problems experienced by the applicant in Wellington due to the rat plague were common to everyone residing in that area. They were ultimately resolved by the applicant being removed to another facility.

65 The hardship suffered by the applicant was for a finite period and is, therefore transitory in nature akin to, for example, offenders being confined in protective custody for periods of their sentence. I shall take this factor into account in resentencing, but, in these circumstances, the weight afforded to it cannot be substantial.

Covid-19

66 The evidence of Ms Kadadi extended to the general circumstances of COVID-19 in prisons, namely that, as at 29 September 2021, there was 43 confirmed cases of COVID-19 at Parklea Correctional Centre as well as particular considerations arising with respect to the applicant. She deposed that he was seeing his parents daily prior to incarceration, however, at the time of the swearing of her affidavit on 6 September 2021, after the applicant commenced his incarceration at Wellington, his parents were unable to travel the long distance due to health issues. Prior to his incarceration, he was assisting with his father’s medical care and the operation of the family herbal cupping business.

67 There have been periods since the incarceration of the applicant where in person visits were cancelled due to COVID-19 which restricted his parents from visiting him. Audio visual access is limited.

68 The COVID-19 pandemic and its implications for conditions of incarceration including hardships occasioned by restrictions put in place by custodial authorities to contain the spread of the virus and the consequential risks for prisoners may be taken into account in resentencing the applicant: Doudar v R [2021] NSWCCA 37 at [72] (per Hoeben CJ at CL, with whom Bellew and Wright JJ agreed) and Toller v R [2021] NSWCCA 204 (“Toller”) at [25] (per Beech-Jones J, with whom Macfarlan JA and Davies J agreed). (That situation may be contrasted with an application brought on appeal where the offender’s conditions in custody are being rendered more onerous because of the imposition of restrictions by prison authorities in response to the threat posed by the pandemic: Cabezuela v R [2020] NSWCCA 107 at [131]- [132] (per Walton J, with whom Hoeben CJ at CL and Harrison J agreed) and Toller at [25]).

69 The evidence before the Court, and notwithstanding the increased vaccination rates of inmates, prison workers and visitors, is that remains the need for custodial authorities to impose restrictions and limitations including lockdowns to retain the spread of the virus and ameliorate its effects. With different strains of the virus impacting the prison system these circumstances may not be described as merely temporary hardships but appear to be ongoing, even with some apparent abatement.

70 It may be noted, that at the Parklea Correctional Centre where the applicant was held, the institution adopted the practice of isolating prisoners with COVID-19. This does not seem to be a factor relied upon by the applicant as such. Rather, in the present case the evidence is that the main effect of COVID-19 on the applicant’s custodial condition is the suspension of “in person” family visits although video visits are available. This appears to have exacerbated prior concerns held by the applicant about access to his family.

71 I also accept the submission by the applicant that the increased threat of and stress of the spread of COVID-19 in its various strains adds to some degree to the hardship associated with the spread of the virus.

72 It follows that the increased hardships associated with COVID-19 and the risk of its spread should be taken into account in the resentencing of the applicant. It is a matter which potentially goes to the length of the sentence imposed upon the applicant. However, in the circumstances described above, I do not consider that the particular impacts upon the applicant warrants significant weight being given to this factor in the sentencing exercise.

Programs

73 The applicant submitted that he had participated in various programs whilst in prison. Reference was made to the High Intensity Program arranged through the Department of Communities and Justice.

74 I have considered the terms of that Program in the context of the conclusions reached by the sentencing judge with respect to the prospects of rehabilitation being guarded. As previously mentioned, I do not consider the completion of the Program warrants a conclusion that the applicant’s prospects are now “better” than guarded having regard to the basis for the conclusion reached by the sentencing judge in that respect.

CONCLUSION: RESENTENCE

75 In reaching a conclusion as to the sentence to be imposed upon the applicant, I have had regard to the purposes of sentencing in s 3A of the Sentencing Procedure Act. I am also mindful that the mitigating subjective features which have been identified earlier must be balanced with the need for the sentence imposed to be proportionate to the objective seriousness of the offending together with any circumstances personal to the offender which either aggravate the offending or militate against leniency.

76 As mentioned, the objective gravity of the applicant’s offending is demonstrated by the applicant being sentenced to four separate drug offences all of which carried a maximum penalty of 15 years’ imprisonment. There were three matters on a Form 1 which required a greater weight to be given to specific deterrence and punishment, as well as an aggravating factor with respect to the sequence 9.

77 The applicant does have subjective features which must be taken into account in his favour in sentencing. I note, in particular, in that respect, without repeating my earlier discussion, that the applicant’s mental health conditions referred to by Mr Abbas and the Mindways report, together with his borderline intellectual functioning, must be taken into account. So too must be any additional hardships experienced whilst in prison due to COVID-19 and the rat infestation, for which I have accorded weight in the manner discussed above.

78 I apply the discount for the plea of guilty applied by the sentencing judge of 25%.

79 However, the applicant’s criminal history denies him leniency and as I have found the prospects of rehabilitation are at best guarded and he is at medium to high risk of reoffending.

80 I consider that general deterrence should feature in this matter and as the Crown has correctly submitted the ultimate sentence must reflect the principle of totality which, in my view, is reflected in an aggregate sentence imposed relative to the respective maximum penalties for the offences.

81 I find the existence of special circumstances upon the same basis as the sentencing judge.

82 I have allowed for a reduction in both the head sentence and non-parole period of 6 months for pre-sentence custody.

83 In delivering sentence, in the exercise of my sentencing discretion afresh, I would propose that indicative sentences in accordance with s 54(2) of the Sentencing Act be those set out in the table at [4] of this judgment.

84 In the circumstances I would propose the following orders:

(1) Grant leave to appeal and allow the appeal against sentence with respect to the aggregate sentence imposed.
(2) Quash the sentence imposed in the District Court on 5 November 2020.
(3) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 4 years from 5 November 2020, with a non-parole period of 2 years and 3 months from 5 November 2020.

85 FULLERTON J: I have read the judgment of Walton J and the additional observations of McCallum JA. I also agree with the orders Walton J proposes and substantially for the reasons stated.

86 In my view, however, it is important to emphasise that it was only the Crown’s concession that the sentencing judge erred in the manner in which she took into account the applicant’s pre-sentence custody that engaged this Court in a resentencing exercise. For the purposes of resentence, I am not persuaded that evidence which addressed the applicant’s mental health and functioning (essentially the same evidence that was before the sentencing judge) warranted any reduction in his moral culpability. While I accept, unreservedly, the views of McCallum JA as to the pervasive and often disabling influence of the trauma experienced by survivors of sexual abuse, I am not persuaded, on the probabilities, that there is any discernible link between the applicant’s experience of trauma as a child and his repeated offending as a commercial drug supplier. I would also add that where that same body of evidence was not relied upon before the sentencing judge as diminishing the applicant’s moral culpability, it has not been suggested that a miscarriage of justice has resulted from the approach taken by the applicant’s legal representatives in the Court below. It would be only in an exceptional case that this Court on resentence would take a different approach (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25).

87 I do accept, however, that the applicant’s compromised mental health will continue to make his experience of custody more onerous. Those factors often attract a finding of special circumstances without operating in mitigation of sentence. In this case, however, where the conditions of the applicant’s custody since the date of sentence as detailed in the evidence tendered on resentence, including the impact of the pandemic, have exacerbated that state of affairs, additional leniency is justified.

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