Robertson v R [2024] NSWCCA 22
Robertson v R [2024] NSWCCA 22 · Read the judgment on AustLII
Catchwords: Sentencing – ‘financial reward’ – relevance of deprived upbringing where there is planning
Here the CCA has reiterated that where an offender commits an offence to pay off a drug debt or to fund their own habit, then the offence will typically not be for ‘financial reward’ in the way that is normally understood in the context of sentencing – but this amounts to the absence of an aggravating factor, rather than the presence of a mitigating factor. And where an offender has experienced profound deprivation in their upbringing, whilst an offence which is planned may mean that the offender’s moral culpability for the offence is not reduced, that is not necessarily so.
The applicant was sentenced in the District Court for an offence of supplying not less than the commercial quantity of a prohibited drug. He made nine supplies to an undercover operative over a period of about three months, totalling 532.01g of cocaine, in return for $174,000 (there were also three small supplies on a Form 1). The main motivation for the offending was said to be to pay off a drug debt. In this respect, however, the sentencing judge concluded that the offence was designed to accrue to the applicant a financial reward, in the sense of paying off his drug debt. Separately, having concluded that the applicant did in fact experience a deprived upbringing, the sentencing judge nevertheless concluded that there should be no substantial reduction in moral culpability on that account, in part because the offending was not impulsive, but rather was planned, deliberate, and carried out over the course of three months, and followed a number of positive steps that the applicant had taken in his life. The applicant was sentenced to 6 years, with a non-parole period of 3 years and 6 months.
The applicant appealed on grounds including that the sentencing judge had erred in taking into account ‘financial reward’ in aggravation of the objective seriousness of the offence; and that the sentencing judge had incorrectly applied the principles relating to the reduction of moral culpability as a result of a deprived upbringing.
The Court (Ierace J, with whom Harrison CJ at CL and Wilson J agreed) observed by reference to earlier authority that engaging in a drug offence such as supply or importation in order to repay a drug debt or to finance an addiction is not mitigatory of the offence’s objective seriousness. Indeed, doing so for financial reward, whether exclusively or beyond what is necessary to pay off a drug debt, might increase the objective seriousness of the offence. On the other hand, to the extent that engaging in offending behaviour can be construed as a financial reward (which is how the judge interpreted it here), the purpose of the financial gain determines its relevance in the sentencing exercise. In particular (again, adopting earlier authority), the Court here endorsed the conclusion that selling drugs to feed a drug addiction is a factor which does not increase the moral culpability of the offence in the way that it might be increased if the financial gain were not so excused [sic – ‘excused’ was the word used in the earlier authority, but it does not appear to have been intended to suggest this is exculpatory; ‘explanatory’ is probably closer to the original intent]. On the other hand, nor does the sale of drugs to feed a drug habit in any way diminish the objective seriousness of the offence (at [90]-[91] of the present judgment). In the present case the judge treated financial gain as the applicant’s primary motive and a significant factor in fixing the objective seriousness of the offence. This was an error (at [93]), since the reason for the financial gain (to pay off a drug debt and to skim some drugs for his own use) was in fact of little consequence in that exercise.
In relation to the question of the applicant’s moral culpability, the Court observed that the sentencing judge’s reasoning assumed that a reduction of the moral culpability of an offender due to their profound childhood deprivation is precluded if the offence involves a significant amount of planning (rather than it being an impulsive act) and in circumstances where they knew it to be wrong, and they had demonstrated a capacity to live a pro-social life (at [109]). An offender who planned the offence for which they are being sentence, when that is considered with all the relevant evidence, might not see their moral culpability reduced. However, it is incorrect to state that an offender’s moral culpability cannot be reduced on that basis (at [109]-[110]). It is not always the case that planning disentitles an offender from a reduction in their moral culpability (at [112]-[113]). As to whether an offender’s awareness that the offence is wrong and their earlier positive achievements are pivotal considerations, statements of the High Court acknowledge that the impact of an offender’s profound childhood deprivation on the offender’s moral compass may be embedded and may not necessarily, or easily, responsive to a change in circumstances for the better (at [114]).
This, in addition to the ground described above, having been disclosed error on the part of the sentencing judge, the appeal was allowed and the applicant was resentenced to 4 years and 6 months, with a non-parole period of 2 years and 11 months.