Lam v R

[2015] NSWCCA 143

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Lam v R [2015] NSWCCA 143
Hearing dates:	27 May 2015
Decision date:	17 June 2015
Before:	Hoeben CJ at CL at [1] Johnson J at [85] Beech-Jones J at [86]
Decision:	(1)   Leave to appeal be granted. (2)   The appeal be dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – importing a commercial quantity of a prohibited drug – whether opinion of psychologist wrongly rejected – whether denial of procedural fairness – factual basis for psychologist’s opinion not made out – psychologist’s conclusions going beyond his expertise – no denial of procedural fairness – sentencing judge entitled to reject psychologist’s conclusions.
Legislation Cited:	Crimes Act 1914 (Cth) – s 16A(1), s 16A(2) Criminal Code (Cth) – s 307.1(1) Evidence Act 1995 – s 79(1)
Cases Cited:	Cherdchoochatri v R [2013] NSWCCA 118; 277 FLR 126 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 Devaney v R [2012] NSWCCA 285 DPP (Cth) v De La Rosa ]2010] NSWCCA 194; 79 NSWLR 1 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 O’Neil-Shaw v The Queen [2010] NSWCCA 42 R v JCW [2000] NSWCCA 209; 112 A Crim R 466 Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213 WW v R [2012] NSWCCA 165
Category:	Principal judgment
Parties:	Ho Fung Lam – Applicant Regina – Respondent Crown
Representation:	Counsel: Mr S Buchen – Applicant Mr C O’Donnell – Respondent Crown   Solicitors: Legal Aid NSW – Applicant Commonwealth Director of Public Prosecutions - Respondent Crown
File Number(s):	2012/214286
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 14 February 2014 Before: Arnott SC DCJ File Number(s): 2012/214286

Judgment

1. HOEBEN CJ at CL:

Offences and sentence

On 15 November 2013 the applicant pleaded guilty to one count of importing a commercial quantity of a prohibited drug, namely 2.8959 kgs of heroin, contrary to s 307.1(1) of the Commonwealth Criminal Code. The offence carried a maximum penalty of imprisonment for life. The threshold commercial quantity of heroin under the Code is 1.5 kgs.

2. On 14 February 2014 Arnott SC DCJ sentenced the applicant to imprisonment with a non-parole period of 7 years, commencing 16 May 2012 and expiring 15 May 2019 with a balance of term of 4 years expiring 15 May 2023.

3. The applicant seeks leave to appeal from that sentence on the following grounds:

Ground 1 – The learned sentencing judge’s rejection of the opinions of Dr Jacmon resulted in a denial of procedural fairness and a miscarriage of justice.

Ground 2 – The learned sentencing judge erred by rejecting Dr Jacmon’s opinions that:

(a)   The applicant was suffering from a major depressive disorder at the time of the offences; and

(b)   The applicant was suffering from a major depressive disorder at the time of sentence.

4. If successful on these Grounds of Appeal, the applicant seeks an order that the sentence be quashed and that the matter be remitted to the District Court for further hearing and determination.

Factual background

5. There was substantial agreement between the parties as to the facts on which the applicant was to be sentenced. However, the applicant’s role in the offence was not agreed. There was also a contest between the parties as to whether uncharged acts of the applicant could be proved beyond reasonable doubt. These acts were the applicant’s involvement in three other consignments described as containing Fuji film in late April and early May 2012.

6. The Crown’s evidence before his Honour was the Agreed Statement of Facts with the qualifications to which I have referred. Photographs and transcripts of intercepted telephone calls and listening device intercepts supplemented the Agreed Statement of Facts.

7. The applicant, a Chinese National, arrived in Australia on 10 March 2012 from Hong Kong on a three month visa. In April 2012 he rented accommodation at 34 Hollis Avenue, Eastwood. On the afternoon of 18 April 2012 a telephone call between the applicant and Chun Lok Lam was recorded. In that call the applicant referred to “total should be 1400” and that they “both should go over to BJ’s place first”, that the applicant should “get off first and look for the person”, that he would “come over again and that is the safest”. Later that evening another telephone call between those two was intercepted. In it the applicant referred to himself as now “being the runner at every occasion”, and that “quite a few people have come over … We are working as runner for them”.

Consignment 1

8. On 9 May 2012 a consignment arrived by FedEx Airfreight at Sydney Airport from Hong Kong addressed to Ho Chi Man of 2 Eastwood Avenue, Eastwood. A mobile phone contact number, the last three digits of which were 584, was written on the address. Customs officers examined the contents and found it to contain two Fuji film cameras and 18 boxes of Fuji film. Heroin was found concealed inside one of the boxes of Fuji film. The purity of the heroin ranged between 71.9% and 76.2% and accordingly the total weight of pure heroin was calculated to be 1.5635 kgs.

9. On the morning of 11 May 2012 a Federal Police officer, dressed in a FedEx uniform, tried to deliver the package to 2 Eastwood Avenue. An unidentified male at the address said that he did not know anyone by the name of Ho Chi Man and refused to accept delivery of the consignment.

10. When the applicant was arrested on 16 May 2012 he was in possession of two mobile phones. The SIM card for one of those phones was registered to the name and address of someone other than the applicant. A number of text messages were located on the handset, which referred to the waybill number for the consignment and the address at 2 Eastwood Avenue. The other phone when examined, revealed that it had been used to search Google Maps for 2 Eastwood Avenue. After the applicant’s arrest, his residence at 34 Hollis Avenue, Eastwood was searched and the SIM card for the mobile phone service ending in 584 (being the telephone number on the consignment) was found.

Consignment 2

11. On 14 May 2012 a consignment arrived by FedEx Airfreight at Sydney Airport addressed to Lam Man Leung of 136 The Boulevard Strathfield, from Hong Kong. A mobile phone contact number the last three digits of which were 079 was written on the address. Customs officers examined the consignment and found it to contain 10 table-tennis bats. A total of 1.395 kilograms of heroin was found concealed inside the table-tennis bats. The purity of the heroin ranged between 52.9% and 77.5% and accordingly the total weight of pure heroin was calculated to be 822.3 grams.

12. Australian Federal Police officers substituted flour for the heroin. A listening device was inserted in the consignment. On 16 May 2012, an AFP officer dressed in a FedEx uniform tried to deliver the consignment to 136 The Boulevarde. No persons were at home and the officer left a note with contact details including a telephone number to arrange a future delivery.

13. At about 1pm, this AFP officer received a call asking for the consignment to be delivered, not to 136 The Boulevarde, but to the premises at 138. The caller was a co-offender, Shing Yuet Yeung. Mr Yeung was a Hong Kong national who had arrived in Australia in April and had subleased a room at 138 The Boulevarde. Telephone intercept and call charge records indicated numerous calls between Yeung and the applicant in the two weeks before 16 May 2012.

14. At about 1.50pm, acting as a FedEx courier, the AFP officer delivered the consignment to 138 The Boulevarde. Yeung took delivery of it. After he took delivery, there were a number of telephone calls between him and Binh Huy Tran, referred to in the calls as "Jimmy". Tran was to collect the consignment at 3pm that day. There were then a number of calls between the applicant and Yeung. In one call at 2.12pm, Yeung asked the applicant if he was coming over and that, "it's set at 3 o'clock". At 2.45pm, the applicant arrived by taxi at 138 The Boulevarde. The listening device recorded a conversation between Leung and the applicant in which Leung explained to him that the heroin did not seem right, that it was the wrong weight and consistency to that which he expected and that he had told this to "the boss of the other side". Leung said it had no smell and that "previous ones really irritates the nose".

15. The applicant was arrested when he left the premises. He was carrying a notebook with the address "138 The Boulevarde, Strathfield" written in it. He was also carrying $1,250 in cash.

Consignment 3

16. On 17 May 2012, a consignment arrived by FedEx Airfreight at Sydney Airport addressed to Mr Yeung, 32 Hollis Avenue, Eastwood which was next door to the applicant’s address. A mobile phone contact number, the last three digits of which were 851, was written on the address. The SIM card corresponding to the mobile telephone number ending in 851 was found at 138 The Boulevarde when those premises were searched.

17. Custom officers examined the contents of the consignment and found it to contain a silver coloured plastic trophy. There was a cavity inside the trophy in which eight foil packages of heroin were found. The base of the trophy also had a cavity in it in which another four plastic bags of heroin were found. A total of 1030.6 grams of heroin was found. The purity of the heroin ranged between 48.7% and 50.6% and, accordingly, the total weight of pure heroin was calculated to be 510.1 grams.

18. An examination of one of the phones in the possession of the applicant at the time when he was arrested, revealed that he had dialled the airway bill number for consignment 3. The applicant had accessed the FedEx online tracking system for consignment 3, and had searched the Google Maps App, not for 34 but 32 Hollis Avenue, Eastwood. Further analysis showed that he had sent the address, "32 Hollis Avenue, Eastwood", to two other mobile telephone numbers. In the notebook which he had when he was arrested, was written the address, 32 Hollis Avenue.

19. In an intercepted telephone call on 10 May 2012 the applicant told Yeung how to dismantle a consignment containing narcotics concealed within a cup or trophy, similar to the content of Consignment 3. On 11 May 2012 another conversation between the applicant and an unknown male with an Australian mobile phone number was intercepted which talked about the contents of various consignments, including a trophy.

20. The total weight of pure heroin in the three consignments was 2.8959 kilograms. It had a wholesale value of $1,108,375 and a street value of between $2,895,860 and $3,378,480.

21. Intercepted telephone calls between the applicant and several of his associates between 18 April and 11 May 2002 revealed the applicant to have been what the Agreed Statement of Facts referred to as “a key intermediary in an international drug syndicate” importing illicit drugs into Australia. He also trained other people in Australia to carry out the same role. Several calls had the applicant discussing the weight of drugs imported or to be imported and the timing of the arrival of various consignments. They indicated his association with Mr Lam and Mr Yeung, as well as Chun Kit Lam, Bin Je Wang and a person in Hong Kong known only as "Elder Brother".

22. On various occasions imported drugs were delivered to all these associates. In conversations the applicant discussed with these individuals the packaging in which the drugs were to arrive in Australia. He also discussed the amount of money he was earning in carrying out his role as intermediary and complained that he had not yet made enough money to "reach his goal". He discussed the practice adopted by the syndicate of addressing consignments to premises next door to the intended delivery address.

The sentence proceedings

23. The applicant in the sentence proceedings submitted that he acted as a runner under supervision and direction for $1,000 for each consignment but made nothing. He submitted that his decision to come to Australia was brought about by the relationship with his girlfriend terminating, and a desire for a holiday and to see a friend with whom he had been to school in Australia. The applicant emphasised that he had only $1,250 on him when arrested.

24. His Honour rejected those submissions and set out his findings as follows:

“I find, as the Crown submits, that the offender acted as an intermediary in arranging for the consignment of three packages sent from Hong Kong to

Australia, each of which concealed heroin. In performing this role, he travelled

to Australia in early March 2012 for the purpose of involving himself in this

offence with other syndicate members, rented accommodation at 34 Hollis

Avenue, Eastwood - and it will be remembered consignment 3 was addressed

to 32 Hollis Avenue - contacted persons in Australia and overseas to arrange

for the importation of the consignments, including providing addresses to

which each consignment would be sent and providing mobile phone numbers

on which he could be contacted as consignee, acted as a "lookout" or "runner" when consignment 2 was being delivered to 138 The Boulevarde, instructed Yeung in carrying out his role as an intermediary, tracked consignment 3 from Hong Kong to Australia by accessing the FedEx website, contacted various people in Australia who were to be the ultimate recipients of the consignments, and obtained numerous mobile phones and phone services registered in his own and false names in pursuit of these activities.

…

I agree with the Crown submission that the offender demonstrated a high degree of premeditation and planning. The planning, administration and activity extended over at least three months from 10 March to 17 May 2012. I find he was motivated by profit to undertake the dangerous activities he did.

In short, when taking into account the following factors which I find, it can be seen that the seriousness of the offence committed by him was clearly high: the essential role he played in this well planned series of importations, the amount of the drug, the value of the drug, that he entered into the offence for financial motive and knew what the drug was and the approximate quantity. As the Crown points out, intercepted telephone calls between the offender and others mentioned specific quantities or weights of drug to be concealed in various consignments. Whilst an offender may not in many cases of this type be aware of the amount of drug to be imported, the weight of the importation will have increased significance when he is aware of the amount to be imported, R v Lee [2007] NSWCCA 234 at para [23].” (ROS 7 – 8)

25. On the basis of those findings, his Honour stressed the importance of general deterrence in respect of offenders who were commercially motivated to import drugs into Australia. His Honour wished to make it clear to “would be traffickers” that the potential financial gains from drug importation would be neutralised by the risk of severe punishment.

26. His Honour took into account in the applicant’s favour that the drugs had not found their way into the community. That having been said, his Honour was not prepared to give that factor substantial weight because of the clear intention on the part of the applicant that the drugs would be disseminated within the community.

27. His Honour took into account the provisions of s 16A(1) and s 16A(2) of the Crimes Act (Cth). As part of that process, his Honour made findings concerning the applicant’s subjective case.

28. His Honour noted that the applicant had not given evidence. There was, however, tendered in his case a written statement from him, which had attached to it educational certificates of achievement, photographs of him teaching Taekwondo to children, a letter confirming his work in the laundry in prison and a report from Dr Jacmon, psychologist, dated 12 August 2013. There was also a pre-sentence report dated 6 August 2013 from Ms Merhi, a Community Corrections Officer.

29. By reference to that material, his Honour was able to put together the applicant’s background. He had turned 22 in May 2012 and was aged 23 at the time of sentence. The applicant was born and raised in Hong Kong, coming from a stable and close knit family. Both parents were alive and he had two siblings. Before this offence, he had lived in Australia in 2003 for one year when he completed Year 8. He returned to Hong Kong because his parents could not afford to keep him in Australia any longer. He completed his secondary schooling in Hong Kong. Thereafter, he had remained in fairly constant employment as a waiter, hairdresser, delivery driver and for the two and a half years before the offence, as a Taekwondo instructor. In his written statement he said that he had broken off with his girlfriend before coming to Australia.

30. The statement recorded that from the age of 18 until he went into custody, the applicant was a recreational user of cannabis and a drug similar to cocaine. In 2009 a magistrate in Hong Kong had sentenced him for possessing a dangerous drug and resisting a police officer in the execution of his duty to a 12 months probation order. His Honour considered that those past offences had little relevance to this sentencing exercise, other than to indicate that the applicant was familiar with illicit drugs.

31. In relation to the pre-sentence report, and the report from Dr Jacmon, his Honour said:

“He told the author of the pre-sentence report that his involvement in the offence was not for financial gain but to help his co-offender Yeung who was a long term friend and who "set him up". He claimed to have been initially unaware his co-offenders were attempting to possess unlawfully imported drugs and, when he did, he felt it was too late to inform the authorities. Dr Jacmon took a similar history. The offender told him that when he came to Australia to get over the break-up from his girlfriend, Yeung asked him for addresses in Sydney where he could send fake goods because he did not want them delivered to his own location. Not thinking that this involved a serious criminal offence he went along with Yeung.

I do not accept this story at all. When the offender came to Australia he arrived in Western Australia, and when he moved to Sydney in April 2012 he rented accommodation at 34 Hollis Avenue, Eastwood. The facts indicate the practice of the syndicate was to address consignments to premises next door to the intended delivery address. Furthermore, amongst other things, the intercepted telephone calls captured the offender discussing the amount of money he was earning for performing his role with the syndicate. In one call he complained he had not yet made enough money to "reach his goal".

I might add that what he told Dr Jacmon appears, at first blush in any event, at odds with the explanation provided in submissions by Mr Quinn. In his submissions, Mr Quinn stated that Yeung asked the offender if he wanted to earn $1,000 as a runner for consigning goods containing drugs from overseas. I make this only as an observation because what he told Dr Jacmon and the submission made by Mr Quinn may well be reconcilable and I do not place any weight upon this.

Dr Jacmon expressed the opinion that the offender suffers from a major depressive disorder which is likely to have resulted from the long term break-up with his girlfriend in Hong Kong. He accepted the offender's account that he came to Australia to ameliorate or lessen his distress. He then expressed the view that his depression markedly diminished his capacity for judgment and affected his thinking about the consequences. I reject this opinion of Dr Jacmon that the offender was suffering from a major depressive disorder and that his offending was causally related to it. It is in part based on a false history that he was set up by his friend Yeung. The evidence established, to my mind, the offender knew perfectly well what he was doing as well as the gravity and motive behind his actions. I accept he might have broken up with his girlfriend before coming to Australia and being distressed by this and is now suffering some of the depressive symptoms described by Dr Jacmon as a result of the position he now finds himself in. But I do not think he was confused in his problem-solving and decision-making when he committed this offence. I am not satisfied on the balance of probability that he presently suffers from a major depressive disorder.” (ROS 11 – 12)

32. His Honour found that although the applicant had been slow in displaying contrition and remorse, a measure of it was now emerging. There was some acknowledgment of the impact of his actions upon himself, his family and the community in the pre-sentence report. His Honour was prepared to make that finding, even though the applicant had not given evidence.

33. His Honour concluded that the applicant’s prospects of rehabilitation and the unlikelihood of his re-offending were moderate to reasonable. His Honour based this conclusion on his family support, his consistent work history and the good reports of him since being in custody. His Honour took into account that the applicant would be serving a prison sentence in a country which was not his own, and far away from his family and friends, so that his time in prison would be more difficult.

34. His Honour was prepared to discount the applicant’s sentence because of his plea of guilty as being indicative of his willingness to facilitate the course of justice. His Honour noted that the strength of the Crown case was relevant to that consideration. His Honour did not quantify the extent of the discount. While his Honour accepted that the plea of guilty was not entered at the earliest opportunity, his Honour found that it was entered at a reasonably early stage.

35. His Honour then turned his attention to the uncharged acts upon which the Crown relied to rebut the submission that the applicant’s criminality was limited to his involvement in the three consignments particularised in the indictment. As already indicated, the applicant denied that he had been involved in any of the uncharged acts.

36. The Crown case was that when the applicant was arrested, he had a mobile phone with a number which ended in 834. The Crown submitted that an analysis of the phone revealed the following:

1. He had dialled an airway bill number relating to a FedEx consignment described as “Fuji film instant camera and Fuji film instant film” which had been delivered to 138 The Boulevarde on 26 April 2012.

2. He had dialled an airway bill number relating to a FedEx consignment described in the same way which was delivered to 2/21 Rowe Street, Eastwood on 5 May 2012.

3. He had dialled an airway bill number relating to a FedEx consignment also described in the same way as a Fuji camera and film, which was delivered to 138 The Boulevarde on 7 May 2012.

Each of these consignments was found to contain heroin.

37. His Honour found that the applicant’s involvement in those matters was proved beyond reasonable doubt. Since this finding has not been challenged, it is not necessary to set out the evidence on which his Honour’s finding was based.

38. In taking the uncharged matters into account, his Honour was conscious of the fact that he was only sentencing in respect of the offence to which the applicant had pleaded guilty (R v JCW [2000] NSWCCA 209; 112 A Crim R 466). His Honour did not take those matters into account as circumstances of aggravation but to place the offence to which the applicant pleaded guilty in context and to deny him any claim to mitigation or attendant reduction of sentence to which he might have been entitled if the charged offence had been an isolated incident.

39. His Honour accepted that the evidence rebutted any suggestion that the applicant’s criminality was limited to involving himself in three isolated acts confined to a narrow two week period and that he should not be afforded any leniency on that basis. His Honour found that the applicant had involved himself in an ongoing course of planning and activity extending over at least three months for the importation of heroin into Australia.

40. Because his Honour had also sentenced a number of co-offenders, he dealt with the issue of parity. That part of his Honour’s consideration is not relevant to the grounds of appeal and there is no need to set out the reasoning.

41. It is, however, necessary to set out in some detail the report of Dr Jacmon. The consultation, which formed the basis of the report, took place on 11 August 2013 while the applicant was in custody. Dr Jacmon was a qualified psychologist and had a doctorate in education, which included research on the treatment of depression. The report said nothing about an interpreter being used, although it is clear from the sentence proceedings that the applicant required an interpreter. The report did not indicate how long the consultation took. The only test, which was administered to the applicant, was the Beck Depression Inventory (BDI). This is a test which consists of a series of questions administered to the person being assessed.

42. Relevant parts of the report are as follows:

“1. Conclusions

The assessment by testing and clinical interview has gathered considerable

information on Mr Lam's state of mind currently and at the time of the incident

now before the Court. On the basis of the results, the research and the

background the following can be stated:

1.   Mr Lam's day-to-day functioning is being impaired by major depressive disorder at clinically significant levels. The impairment is likely to have resulted from the break up with his long-term girlfriend in Hong Kong. The break up led him to visit Sydney in an effort to ameliorate his distress. A friend whom he had met in Hong Kong asked him to provide addresses for the importations of fake goods from China and he complied. Mr Lam's distress intensified when his friend informed him afterward that the importations did not consist of fake goods but of drugs. Mr Lam's depression is worsened by the effects of custody on him.

2.   The symptoms of major depressive disorder include sadness, marked loss of interest and pleasure in life, decrease in appetite, sleep difficulties, irritability, agitation, fatigue, tension, feelings of worthlessness, and cognitive impairments including (a) difficulties in concentration, memory, problem-solving and decision making, (b) confused thinking and (c) impulsivity. Impairments in concentration, learning and memory remain for at least three years after the appearance of the disorders.

3.   The impairments in para 2 markedly diminish the individual's ability to formulate reasoned judgments. Symptoms of depression particularly confused thought and impaired decision-making coupled with the sadness emanating from the ended relationship are likely to have been prominent triggers to the incident. These symptoms would have militated against his capacity to ensure that he kept away from any illegal activity and not give his absolute trust to his friend's initial assurance that the goods to be imported did not involve the commission of a serious offence.

4.   Mr Lam's actions which led to offending indicated markedly diminished capacity for judgment because there appeared to be little thought given to the consequences, the near certainty of detection and arrest and the need to curb impulsivity.

5.   Mr Lam has reflected on his offending behaviour and the consequences of his actions. He expressed remorse for having offended and took full responsibility for the offending actions. He appreciated the damage that drugs caused to their users. He was particularly sad over the effect of his actions on his parents and brother. He has not told his aged paternal grandparents because he is afraid that the news would distress them and threaten their wellbeing.

6.   Mr Lam's disorder needs treatment to address the symptoms, relieve distress and to enable positive outcomes in the future. Treatment should help safeguard against the manifestation of behaviour that risks offending. … The prognosis for treatment is encouraging because Mr Lam has the support of his family.

7.   Given that deportation is a likely option after he completes his sentence Mr Lam should seek treatment on his return to China.

8.   Completion of treatment and continuation of support by his family should (i) ameliorate the disorders, (ii) markedly reduce the probability of re-offending, and (iii) help Mr Lam lead a lawful and satisfying life.

9.   A lengthy custodial sentence is unlikely to help Mr Lam address his disorder. Psychological treatment on a one-on-one basis as outlined in the treatment plan would be more effective if done over time while Mr Lam is living and working in the community and being supported by his family.”

43. Dr Jacmon expanded the history received from the applicant as follows:

“4.   Background as related by client

Mr Lam was born in Hong Kong. He has an older brother. His parents operate a fruit and vegetable stall at a local market. The family is close and supportive. After completing 12 years schooling Mr Lam joined the workforce. He worked as a casual in several occupations including in a restaurant and as a driver.

In 2010 he met Sham and a relationship developed. The couple did not cohabit but saw each other frequently and their relationship was warm and satisfying. In January 2012 the relationship destabilised and the couple broke up.

Mr Lam became markedly distressed at the break up. His sadness hardly lifted. There was little in his life that drew his interest or gave him pleasure. He felt that his future was hopeless without Sham and blamed himself for the break up. He was restless, irritable and had little energy. His concentration suffered and he had great difficulty in making decisions. He suffered from sleeplessness as thoughts of the break up circled his mind. He was disappointed in himself and felt worthless. He tried to reconcile with her to no avail.

He decided to visit Australia in an effort to put the failed relationship behind him and raise his mood. He gained a visa in March 2012 and came to Sydney. In the next month he rented accommodation in Eastwood. Shortly after arrival he met Yeung who was a friend of his from Hong Kong. Yeung asked him for addresses in Sydney where he could arrange to send fake goods because he did not want them delivered to his own location. Mr Lam did not consider that such a proposal constituted a serious criminal offence and gave him the addresses that he had acquired for him.

Soon after this request was fulfilled Yeung informed Mr Lam that the goods were in fact drugs. Mr Lam became markedly distressed because he realised that he had been led without his knowledge by a friend he trusted into a criminal enterprise. The distress over the break up with Sham which had begun to abate now intensified as he realised the consequences of his actions.

Remorse

Mr Lam expressed remorse for having offended and took full responsibility for the offending actions. He appreciated the damage that drugs caused to users. He was particularly sad over the effect of his actions on his parents and brother. He has not told his aged paternal grandparents because he is afraid that the news would distress them and threaten their wellbeing.

…

Assessment process

Mr Lam's presentation and background indicated depression with anxiety. He was assessed by psychological testing and by clinical interview.

A.    Psychometric assessment

The Beck Depression Inventory (BDI)

The BDI measures the severity of depressive thinking on behaviour and also indicates the extent of anxiety affecting functioning. Mr Lam's results indicate severe depression and the existence of anxiety.

B.   Clinical assessment

The tests and the background indicated depression. Mr Lam was clinically assessed for this condition on the basis of DSM-5 (Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition)) criteria.

(a)   Disorders at the present time

Mr Lam's description of current day-to-day functioning led to the identification of the following symptoms, classified in terms of DSM-5 criteria:

(i)    Major depressive disorder

Five (or more) of the following symptoms have been present the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood, or (2) loss of interest or pleasure.

1.   Depressed mood most of the day, nearly every day as indicated by subjective report or observation made by others. Indicated.

2.   Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by subjective report or observation). Both indicated.

3.   Significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. Appetite loss indicated.

4.   Insomnia or hypersomnia nearly every day observable by others. Insomnia indicated.

5.   Psychomotor agitation or retardation nearly every day (observable by others). Agitation indicated.

6.   Fatigue or loss of energy nearly every day. Both indicated.

7.   Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick). Worthlessness indicated.

8.   Diminished ability to think or concentrate, or Indecisiveness, nearly every day (either by subjective report or as observed by others) Both

indicated.

9.   Recurrent thoughts of death (not just fear of dying), recurrent suicidal

ideation without a specific plan, or a suicide attempt or a specific plan

for committing suicide. Not indicated.

The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Indicated.

The symptoms as indicated meet at minimum five criteria including at least one of the first two criteria and the last criterion in the same 2-week period. Hence the condition is diagnosed as major depressive disorder.

(b)   Disorders at the time surrounding the incident before the Court

The background indicated depression at the time surrounding the incident now before the Court. Mr Lam's description of functioning at that time indicated the existence of the same criteria for depression as at the present time.”

44. The matter first came before his Honour for sentence on 15 November 2013. Because of the disputed issues of fact, the Crown advised the court that the matter would have to be adjourned so that witnesses could be called on those issues. The Crown tendered its Statement of Facts, the pre-sentence report, transcripts of telephone calls and photographs. The Crown also handed up its written sentencing submissions. Shortly after that hearing, the report of Dr Jacmon was served on the Crown.

45. The matter next came before the Court on 6 December 2013. It is apparent from the transcript of those proceedings that the matter was reached late in the day and that there was some pressure on both counsel to complete the matter. On that occasion, Dr Jacmon’s report was tendered, together with the applicant’s statement, testimonials, certificates of achievements and a letter from the Metropolitan Remand Centre. At the conclusion of his submissions, counsel for the applicant thanked the court staff for staying back (T.25.46). In addition to its written submissions, which had been placed before the court on the previous occasion, the Crown briefly addressed. The Crown made it clear in submissions that it disputed the factual assertions by and on behalf of the applicant that he had occupied a subordinate role to Yeung and had been led into the offending by Yeung.

46. On that issue, the Crown said:

“The Crown does not concede that he occupied a lower role to Yeung. We would say he was senior to Yeung. Ultimately they were occupying the same role in a sense but the character of the telephone intercepts material, I invite your Honour to read those, even the contents of that very first call I think it is, I submit that your Honour should not accept the story that's been given that the offender was recruited by Yeung. The evidence is that the offender came to Australia some time earlier and even this first phone call on 25 April we state he's indicated that he's - sorry, "I am being the runner on every occasion, it involves some quite intensive participation in the enterprise" at 25 April and we know that Mr Yeung only arrived in the country four days prior to that on 21 April. So if I can just point to the implausibility of that account of how the offender came to be involved in this enterprise. I'd submit your Honour should reject that account and find that although Mr Yeung and the offender occupied a very similar role the offender was occupying that role at the first instance and then instructed Yeung on how that role was to be performed and there's in particular a listening device referred to in the submissions where the offender is instructing Mr Yeung on how the number on the - the exact address should be changed so effectively it's delivered to the next door and he also in another call instructs him on how to dismantle various items that have been delivered.

The Crown would invite you to reject the version that the offender is in a very difficult financial position. There's no evidence of that before the Court and there's repeated references to the offender making the comment that I've made X amount of dollars, I haven't reached my goal yet. Indeed we see in that first call on p 2 an associate of the offender saying, "You have made so

much and still not enough". The clear inference is that the offender had made a significant amount of money by being involved in this enterprise at that point. In the absence of any strong evidence to the contrary your Honour should just reject that submission the Crown submits.

Again in the same line it is submitted that the offender was not a pawn in the operation but occupied a vital link in the international enterprise. This is again evidence in the listening device material, he had close ties with senior syndicate members in Hong Kong and made phone calls to them. He clearly would have had pre-knowledge of the arrival of all six consignments which are referred to in the table. He was provided with the airway bill number, and that goes back to that first entry in his phone on 24 April, which is again only three days after Mr Yeung had arrived in the country. …” (T.27.20 – 28.7, 6.12.13)

47. The Crown’s written submissions, which were handed up on 15 November 2013, were to similar effect on that issue. They provided more detail as to the importance of the applicant’s role in the drug importation scheme. The written submissions also went into considerable detail as to the applicant’s awareness of the nature of the imported substance and the financial motivation for his offending (AB 312 – 313, 315 – 316).

THE APPEAL

Ground 1 – The learned sentencing judge’s rejection of the opinions of Dr Jacmon resulted in a denial of procedural fairness and a miscarriage of justice.

Ground 2 – The learned sentencing judge erred by rejecting Dr Jacmon’s opinions that:

(a)   The applicant was suffering from a major depressive disorder at the time of the offences; and

(b)   The applicant was suffering from a major depressive disorder at the time of sentence.

48. It is convenient to deal with both Grounds of Appeal together since they raise the same issue.

49. The applicant submitted that Dr Jacmon, as an expert in the field of depression, had expressed an opinion that his functioning was impaired by a major depressive disorder which likely resulted from the breakup with his girlfriend in Hong Kong. This had led to him travelling to Sydney to ameliorate his distress, had affected his judgment so that he helped a friend to provide addresses for the importation of fake goods from China and his distress increased when he discovered that the importations contained drugs. The applicant submitted that Dr Jacmon had connected the commission of the offence to his depressive condition in that it had diminished his capacity for judgment and therefore had limited his capacity to avoid illegal activity which meant that he placed greater trust in his friend’s assurance that the consignments did not contain drugs. The applicant submitted that the acceptance of the opinions of Dr Jacmon played an important part in his case on sentence in that an acceptance of the opinion in the report must have resulted in a substantially lesser sentence.

48. The applicant submitted that during the proceedings on sentence, his Honour gave no indication that he would reject Dr Jacmon’s opinion with respect to his major depressive disorder, both at the time of the offence or at the time of sentence. He submitted that the Crown had not objected to the report at the time of its tender and had not called any psychiatric or psychological evidence to rebut that of Dr Jacmon. The applicant submitted that at no time did the Crown submit that Dr Jacmon’s opinion should not be accepted.

49. The applicant accepted that it was open to his Honour to reject that part of the applicant’s history to Dr Jacmon with respect to the part played by Yeung, but it was not open to his Honour to reject Dr Jacmon’s opinion with respect to his mental state at the time of the offence and at the time of sentence. The applicant submitted that his Honour had an obligation to impose the appropriate sentence based on the evidence properly before him (O’Neil-Shaw v The Queen [2010] NSWCCA 42 at [26]). The applicant submitted that where evidence was not challenged or disputed by the Crown and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or “at least was not entitled to do so without proper notice to the applicant that he intended to take that course” (O’Neil-Shaw v The Queen at [26]).

50. The applicant submitted that if his Honour had any doubts about the report of Dr Jacmon, he should have communicated those doubts to the parties and his failure to do so gave rise to a denial of procedural fairness. The applicant submitted that the prosecution’s approach to the report of Dr Jacmon was limited to attacking the history taken by Dr Jacmon with respect to Yeung, which was relevant to his Honour’s assessment of the applicant’s role in the offence. The applicant submitted that the Crown made no submissions as to whether the applicant was suffering from a major depressive disorder, either at the time of the offence or at the time of sentence.

51. The applicant accepted that there might be circumstances in which the opinion of a mental health expert relied heavily on an offender’s account of the offending, such that a sentencing judge was entitled to accord diminished weight to the opinion because of the unreliability of the offender’s account. The applicant submitted that this was not such a case. The applicant submitted that once his Honour accepted that the applicant had broken up with his girlfriend, he should also have accepted Dr Jacmon’s opinion as to the continuing effects of the major depressive disorder brought about by that event.

52. In support of those submissions, the applicant relied upon what was said by Emmett JA and Simpson J in Cherdchoochatri v R [2013] NSWCCA 118; 277 FLR 126 where their Honours said:

“9   In particular, I agree with her Honour that, in circumstances where the Crown did not seek to test the applicant's evidence concerning the alleged duress, and the sentencing judge did not make clear that the applicant's evidence of duress should not be accepted, the applicant was denied procedural fairness. The sentencing judge did not give any indication of his view of the applicant's evidence of duress by, for example, drawing attention to the apparent absence of any mention by the applicant, prior to his evidence on sentencing, of the alleged duress, such as during his interview with a psychologist, Mr Howard. No suggestion was made to the sentencing judge that the applicant's evidence of duress should not be accepted, though the sentencing judge apparently believed, erroneously, that the Crown had made a submission that that evidence should be given little weight. If, notwithstanding that the Crown made no submission, his Honour proposed to reach a conclusion on the assumption that that evidence was not to be accepted, procedural fairness required that his Honour give the applicant notice of that rejection. His Honour failed to do so.” (Emmett JA)

“47   The present issue is whether, in the absence of notice given by the Crown to the applicant that his evidence was in contest, the judge was entitled to take that course.

…

57   It was also open to the Crown in submissions to signify that it did not "passively and unquestioningly" accept the evidence, and did not accept that the judge should do so. The Crown may have drawn attention to the apparent absence of any mention by the applicant prior to his evidence of the events he then recounted. This is where it seems to me that the applicant is on stronger ground. The Crown not having taken that course, it was not unreasonable for the applicant's counsel to proceed on the basis that his evidence was accepted. I have mentioned above "the first part of the proposition put on behalf of the applicant". The second part is that, if he were contemplating rejecting the applicant's evidence, then, in the circumstances as they existed, fairness dictated that the judge himself give the applicant notice of that consideration. Such a course is expressly mentioned by Basten JA in the last sentence at [26] in the passage cited above from O'Neil-Shaw.

58   It being apparent that the applicant relied to a significant extent on that evidence, and there having been no opposition by the Crown, fairness dictated that the applicant's counsel be notified that the judge was sceptical about the account given by the applicant. It was not accurate to say, as his Honour did (in the first paragraph extracted above), that the Crown had submitted that little weight should be given to the applicant's evidence. No such submission was made, either in writing or orally. Alerting counsel to the possibility of rejection of the applicant's case on motivation would, at least, have enabled counsel to make further submissions with a view to urging his Honour to accept what the applicant had said. It may even have been possible to call additional evidence in support, for example, from the applicant's wife, or from Mr Howard. …” (Simpson J)

55. The applicant also relied upon the following observations by Allsop P (with whom Price J agreed) in Devaney v R [2012] NSWCCA 285 where his Honour said:

“88   It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition. Further, the submissions of the applicant about her Honour's findings concerning his response to medication have force.”

56. The applicant submitted that it was not reasonably open to the sentencing judge to reject the psychological case advanced by him that his major depressive disorder was causally related to his offending and that he was suffering from a major depressive disorder at the time of sentence. The applicant submitted that the Crown did not require Dr Jacmon for cross-examination and did not advance an alternative psychological case.

57. The applicant submitted that Dr Jacmon’s opinion should have been accepted and that his mental illness should have been taken into account in accordance with the principles summarised by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]:

“●    Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

●    It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

●    It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

● It may reduce or eliminate the significance of specific deterrence. …”

Consideration

58. His Honour’s rejection of the opinion of Dr Jacmon was based on his Honour’s rejection of the history upon which that opinion was based. That is a legitimate basis for rejecting the conclusions in an expert’s report (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Priestley, Powell and Heydon JJA at [4], [10], [21], [64] – [78])).

59. Fundamental to the opinion of Dr Jacmon was an acceptance of the following matters:

1. That the applicant had broken up with his girlfriend before coming to Australia.

2. That this had caused him to become profoundly depressed.

3. That he came to Australia in an attempt to alleviate this depression.

4. Shortly after his arrival, the applicant met Yeung who persuaded him to assist in the importation of fake goods. He became involved in this enterprise because of his diminished capacity for judgment.

5. He subsequently learned that he was involved in the importation of drugs which markedly increased his depression.

6. He remained significantly depressed at the time of his interview with Dr Jacmon.

60. Whether or not the applicant had in fact broken up with his girlfriend and had become depressed thereby could not be directly challenged because the applicant did not give evidence. His motivation for coming to Australia, however, could and was directly challenged. The explanation given to Dr Jacmon was demonstrated by the evidence to be untrue. So also were the circumstances of his contact with Yeung and his involvement with the importation of drugs into Australia.

61. The evidence before his Honour made it clear that the applicant’s arrival in Australia was premeditated and planned as were his subsequent actions in arranging for addresses to which consignments could be sent. His evidence concerning Yeung was clearly a falsehood in that he had arrived in Australia weeks before Yeung and the telephone intercepts made it clear that he was the person giving directions and providing information to Yeung. His motivation for his involvement in drug importation was financial gain, not that he had been inadvertently drawn into such a scheme because of a reduced capacity (due to depression) to make appropriate decisions. The disconnect between the history taken from the applicant by Dr Jacmon and the reality was not just a matter of detail but comprised a sequence of deliberate falsehoods designed to exculpate him from responsibility for his conduct.

62. The extent of the applicant’s falsehoods was such that his Honour was entitled to reject the key conclusions of Dr Jacmon. It is apparent that if there had been a breakup with his girlfriend resulting in depression, that had nothing to do with the offending. The applicant’s actions and the inferences to be drawn from the telephone intercepts made it clear that he had full knowledge and appreciation of exactly what he was doing when importing drugs. As indicated, the history concerning Yeung was also a fabrication. Given the level of deceit practised upon Dr Jacmon on these key issues by the applicant, it was open to his Honour to reject not only those parts of the applicant’s history which could be proven to be falsehoods but those in respect of which there was no evidence except the unsubstantiated assertions of the applicant reported second hand by Dr Jacmon, i.e. the fact that he was depressed as a result of the breakup with his girlfriend and the fact that he was depressed at the time of examination. As his Honour observed, he may well have been somewhat depressed when examined by Dr Jacmon but this was because he was facing a substantial term of imprisonment, not because of what had happened in relation to his girlfriend, or because he had discovered that he had inadvertently become involved in drug importation.

63. While it is true that the Crown did not in terms attack the report of Dr Jacmon and his conclusions it did, both in writing and orally, attack the applicant’s version of events as set out in his statement and as accepted by Dr Jacmon. Counsel for the applicant was well aware of this attack and made submissions in response. Once the substratum upon which Dr Jacmon’s conclusions were based was destroyed, those conclusions could not stand.

64. It follows that there was no unfairness in what his Honour did. He made findings as to the part played by the applicant in the importation. That was an issue which was consciously contested by the parties. The effect of those findings was to almost completely undermine the conclusions of Dr Jacmon which were based on a version of the facts rejected by his Honour.

65. It is no answer to say that his Honour should have given notice that he was considering rejecting Dr Jacmon’s opinion. It must have been apparent to counsel appearing for the applicant that if his Honour rejected the applicant’s submissions as to the part he played in the importation, that this would have a knock on effect in relation to the conclusions of Dr Jacmon. What occurred was the inevitable consequence of the applicant not giving evidence and relying on an expert’s report without calling the expert.

66. On the facts of this case, even if Dr Jacmon had been called, it is difficult to see how that could have altered the result. All that Dr Jacmon could say under cross-examination was that his opinion was based on the history which he was given and that if that history were found to be incorrect, that would substantially invalidate his conclusions. The Beck Depression Inventory test would not have any effect on that result since that was a test which depended for its usefulness on the accuracy/honesty of the person answering the questions.

67. The cases upon which the applicant relied do not assist him. They deal with very different factual situations.

68. In Devaney v R there were reports from three psychiatrists before the sentencing judge to the effect that at the time of committing the offence, the applicant was in a state of psychosis. The cause of that psychosis was later diagnosed as paranoid schizophrenia. The sentencing judge inclined to the view that the applicant was attempting to manipulate the psychiatrists while avoiding full confrontation with his violent history and attitudes towards his ex-girlfriend (the victim). The sentencing judge therefore substantially discounted the opinions of the three psychiatrists. Most particularly, there was no challenge to the factual basis upon which the psychiatrists reached their conclusions.

69. It is not without significance that in Devaney the court was considering the reports of three psychiatrists, i.e. medical practitioners, and not reports of psychologists. As Allsop P pointed out, it was part of the professional skill of a psychiatrist to assess a history and to determine how it accorded with the hypothesised and formed views of the professional. In this case it was a psychologist taking the history, most of which was demonstrably false.

70. In Cherdchoochatri v R the applicant gave evidence in the sentence proceedings. In that evidence the applicant raised for the first time, as an explanation for his conduct, the issue of duress. The applicant was not cross-examined by the Crown to suggest that what he said concerning duress was untrue or incorrect. In those circumstances, the Court of Criminal Appeal held that his Honour should have given some indication that he proposed to disbelieve the applicant so as to enable his counsel to make appropriate submissions. That factual circumstance is very different to this case.

71. In the course of giving her reasons in Cherdchoochatri v R Simpson J adverted to the tension which can arise between a judge’s prerogative to reject evidence, even if there is no evidence to the contrary, and circumstances where a miscarriage of justice can arise.

72. Her Honour said:

“47   The present issue is whether, in the absence of notice given by the Crown to the applicant that his evidence was in contest, the judge was entitled to take that course.

48   Counsel for the applicant relied upon two paragraphs from the decision of this Court in O'Neil-Shaw v R [2010] NSWCCA 42 (per Basten JA). Those paragraphs are in the following terms:

"26    Statements of general principle must be understood in their context. Nothing in the statement set out above from Chow [see below] should be understood as inconsistent with the obligation of the sentencing judge to impose the appropriate sentence, based on the evidence properly before the court. As explained by Howie J in Palu [see below], the factual basis should be identified with particularity and disputed facts resolved by the accusatorial process upon the evidence before the court. Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course.

27    It is a basic rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, both so that the witness may respond and so that the court has the benefit of assessing the response ... Where there has been no cross-examination of witnesses to contest their evidence 'judges should in general abstain from making adverse findings about parties and witnesses'.

49   The "statements of general principle" to which Basten JA referred appear in paras [23] and [24], preceding the paragraphs relied on on behalf of the applicant. The first is drawn from Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, in which Kirby P set out principles governing the functions of prosecutors and judges involved in sentencing proceedings. The fifth principle is in the following terms:

"The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge's performance of the judicial function by their plea bargaining: see Malvaso v The Queen ... [[1989] HCA 58; [1989] HCA 58; 168 CLR 227]"

50   The second "statement of general principle" was drawn from the decision of this Court in R v Palu [2002] NSWCCA 381; 134 A Crim R 174, and is in the following terms:

"21    It behoves the parties, especially after a 'plea bargain', to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court: Chow ... at 604-608 ..."

51   It is worth also noting a brief passage from the judgment of Johnson J in O'Neil-Shaw. His Honour said:

"50    Where affidavits are read without objection in civil proceedings, with deponents not being required for cross-examination, the rule is that such evidence should be accepted unless there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence ..." (citations omitted)

It may be that his Honour regarded that principle as also applicable in criminal proceedings. If that is so, I would venture to suggest that the principle is stated too broadly. Criminal proceedings, including (and possibly especially) sentencing proceedings, are more than inter partes litigation. A sentencing judge must have regard not only to the often competing positions of the Crown and the person the subject of the proceedings, but also to the public interest in criminal justice. That interest extends to the imposition of a sentence correctly within the appropriate range. That, in turn, extends to a proper and critical examination of all material put before the sentencing judge. A judge is not bound "passively and unquestioningly" to accept an account, apparently mitigatory, of an offender's motivation for becoming involved in an offence.

52   The various passages cited above expose two principles that are not necessarily easy to reconcile. On the one hand, as was noted in Chow, a sentencing judge is not obliged to accept "passively and unquestioningly" evidence presented by either party. On the other hand, as was pointed out by Basten JA and Johnson J in O'Neil-Shaw, the normal processes in the adversarial system require that the opposing party identify any challenge to factual material placed before the court. If no such challenge is identified, it is not unreasonable to assume that the evidence is not disputed. Where that is the case, it might also reasonably be expected that the sentencing judge would accept the evidence, at least in the absence of some signal that that might not be the case. Such a signal would give the party an opportunity to attempt to marshall additional evidence or argument. Basten JA explicitly recognised this in the last part of para [26] in O'Neil-Shaw.”

73. In this case the disputed facts were resolved by the accusatorial process upon the evidence before the court. The applicant’s legal advisers were aware of the contest and participated in it. The facts in dispute were resolved in a way adverse to the applicant. Since the opinion of Dr Jacmon was predicated on a resolution of the facts favourable to the applicant, the rejection of the applicant’s position substantially undermined that opinion. That made the findings by the sentencing judge almost inevitable. The process which took place did not involve any denial of procedural fairness.

74. The above is sufficient to dispose of the matter. For the guidance of lower courts, however, I wish to say something further. Although this issue is not relevant to the outcome of the appeal in that no submissions were made to the sentencing judge in relation to it, it does directly arise from the evidence which was before his Honour.

75. It is trite to note that the Evidence Act 1995 does not apply in sentencing proceedings unless a direction is given to that effect, and that there is a degree of flexibility in sentencing proceedings as to the manner in which evidence may be given. Nevertheless, the rules of evidence as set out in the Act and at common law, embody principles of fairness which have been worked out by the courts over many years. An important part of that body of rules are those relating to opinion evidence.

76. To be admissible under s 79(1) of the Evidence Act the evidence that is tendered must satisfy two criteria:

1. The witness who gives the evidence must have “specialised knowledge based on the person’s training, study or experience”.

2. The opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”.

77. In Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said in relation to s 79:

“37   It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.”

78. Dr Jacmon was not a medical practitioner and was not medically trained. His curriculum vitae showed that he had a Doctorate in Education, which included research into the treatment of depression. He had a Masters degree in Education, which included a psychological element, i.e. research into reinforcement theory. He had a Bachelor of Science, which included psychology as part of the course. His work history and published research showed that he had considerable experience and expertise in the treatment of depression and other psychological ailments. Even with such qualifications, it is difficult to see how his expression of opinion in paragraph 1 under the heading “Conclusions” could be said to be based on his specialised knowledge based on training, study or experience (at [42] hereof).

79. The first part of the conclusion, i.e. that the applicant’s “functioning was impaired by a major depressive disorder at clinically significant levels”, was a conclusion available to Dr Jacmon based on the BDI test results. The history taken by Dr Jacmon could also inform that conclusion. Where I have difficulty is in understanding how Dr Jacmon could reach the next conclusion, i.e. “the impairment is likely to have resulted from the breakup with his long term girlfriend in Hong Kong”. That is a medical diagnosis for which I can find no basis in the specialised knowledge or training available to Dr Jacmon.

80. Similarly, the following conclusions also appear to be beyond the expertise of Dr Jacmon:

“3   … Symptoms of depression particularly confused thought and impaired decision-making coupled with the sadness emanating from the ended relationship are likely to have been prominent triggers to the incident. These symptoms would have militated against his capacity to ensure that he kept away from any illegal activity and not give his absolute trust to his friend's initial assurance that the goods to be imported did not involve the commission of a serious offence.

4   Mr Lam's actions which led to offending indicated markedly diminished capacity for judgment because there appeared to be little thought given to the consequences, the near certainty of detection and arrest and the need to curb impulsivity.”

81. The situation is similar to that considered by this Court in WW v R [2012] NSWCCA 165 where the following was set out:

“55   The applicant submitted that his Honour erred in relation to his treatment of the ADHD condition when he said:

"Little information has been provided as to whether the offender continued to be affected by the said disorder at around the time of the offence". (ROS 14.8)

56   The applicant submitted that there was no question that he was diagnosed with ADHD at the age of six, and that when tested in April 2011 it was "highly probable that he continues to suffer from ADHD". Mr Mahoney described some of the symptoms of ADHD which was "characterised by the co-existence of attentional problems impulsivity and hyperactivity". Having reviewed the applicant's medical history, Mr Mahoney expressed the opinion that it was likely that his ADHD affected him to some degree at the time of the offence, particularly around the area of inattention on the road. The applicant submitted that his Honour erred when he failed to take account of that opinion of Mr Mahoney.

57   The applicant submitted that his Honour erred in failing to have any regard to the opinion of Mr Mahoney that "individuals with ADHD may have particular difficulty in conforming to the expectations of this environment such as attending to instructions on taking on tasks that require extended periods of attention". The applicant submitted that his Honour should have taken that opinion into account on the question of whether his experience of imprisonment would be more difficult than that of the general prison population. The applicant submitted that this was an important principle to be taken into account on sentencing. Its importance had been recently affirmed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

58   His Honour was entitled to treat the evidence of Mr Mahoney in the way in which he did. On that issue, the cautionary observation of Johnson J in R (Cth) v Petroulias (No 36) [2008] NSWSC 626 is pertinent. There his Honour said:

"164   A number of psychologists gave oral evidence. In approaching their evidence, I keep in mind that it is important that psychologists do not cross the barrier of their expertise. It is appropriate for persons trained in the field of psychology to give evidence of the results of psychometric and other psychological testing, and to explain the relevance of those results, and their significance so far as they reveal or support the existence of brain damage or other recognised mental states or disorders. It is not, however, appropriate for them to enter into the field of psychiatry: R v Peisley (1990) 54 A Crim R 42 at 52."

59   An analysis of the report of Mr Mahoney indicates that he did cross that line. Having reviewed the applicant's medical history, Mr Mahoney said:

"In relation to the offending behaviour, it is extremely difficult to determine to what extent Mr W's ADHD may have caused or contributed to either his inattention at the time of the accident or his leaving the scene of the accident. In part this is also due to the fact that Mr W has significant difficulty remembering details of the accident due to his own trauma around the event. What is clear is that he was not receiving treatment (medication) at the time of the offending behaviour. It is also clear that throughout his life (including at the time of the offences) he has had general problems with inattention and impulsivity. Therefore it is likely that Mr W's ADHD condition affected him to some degree at the time of the offence, particularly around the area of inattention on the road. There is little evidence to suggest he would have intended to have caused harm to the victim. It is highly probable that his impulsiveness (also a factor in ADHD) contributed to his rash decision of leaving the scene of the accident immediately after it occurred.

With regard to commenting on the impact of a custodial sentence on Mr W given his history of ADHD, there is some research about the vulnerabilities of people with ADHD in the prison system. In detention, individuals with ADHD may have particular difficulty in conforming to the expectations of this environment, such as attending to instructions or taking on tasks that require extended periods of attention. People with ADHD symptoms who are incarcerated have been found to be more disruptive (verbal aggression, damage to property) than a non-ADHD control group."

Of significance is a further observation by Mr Mahoney that despite his ADHD "he does not suffer from a serious mental illness".

60   It was open to Mr Mahoney to test the applicant for indications that at the time of testing he was suffering from ADHD. He could describe the characteristics of the condition of ADHD. What he could not do as a psychologist was to express an opinion as to whether and to what extent the ADHD condition affected the applicant at the time of the offence. Counsel for the applicant, in the sentencing proceedings, could make a submission to his Honour linking the test results and the characteristics which can be experienced by somebody with ADHD. His Honour could accept that submission but was not obliged to do so.”

82. As already indicated, in this case there was another basis by which his Honour could reject the opinion of Dr Jacmon, i.e. that the factual basis upon which the opinion was based was not made out. Even if that had not been so, for the reasons set out above a real question would have remained as to the weight to be given to the conclusions of Dr Jacmon to which I have referred. Normally such objections would go to the admissibility of those parts of the report but since the report was admitted without objection, the weight to be given to those conclusions become an issue.

83. As was stated in WW v R at [60] in certain circumstances a sentencing judge could give some weight to those conclusions but was not obliged to do so.

84. The orders which I propose are:

1. Leave to appeal be granted.

2. The appeal be dismissed.

85. JOHNSON J: I agree with Hoeben CJ at CL.

86. BEECH-JONES J: Subject to what follows I agree with Hoeben CJ at CL.

87. The applicant's complaint is that he was denied procedural fairness because the sentencing judge rejected the opinions of his psychologist without either the Crown or His Honour putting him on notice of the possibility that they may not be accepted. Whether a denial of procedural fairness occurs in circumstances where a sentencing judge rejects evidence put forward on behalf of an offender during a sentencing hearing, without its possible rejection being expressly foreshadowed, is a matter of fact and degree. In some cases it has been held that if the rejected evidence is unchallenged evidence from the offender or lay witnesses then a breach has been made out (O'Neil-Shaw v The Queen [2010] NSWCCA 42; Cherdchoochatri v R [2013] NSWCCA 118; 277 FLR 126).

88. The position is less clear with expert opinions that are at least partly informed by a disputed history given by an offender. In Devaney v R [2012] NSWCCA 285 (Devaney) Allsop P held that the sentencing judge was not entitled to reject the unanimous opinion of three psychiatrists, who found that an offender was suffering from a psychotic illness which directly contributed to the commission of an offence, because of a conclusion that the offender was attempting to manipulate them (at [87] to [89]). This was, in part, because His Honour found that "part of the professional skill of the psychiatrist is the assessment of [a patient's history]" and thus "[t]o say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them" (at [88]).

89. In my view the guiding principle is whether the course of the proceeding was such that it should have alerted the offender to at least the possibility that a rejection of his history as recounted to the psychologist would result in a rejection of that psychologist's opinion, that is whether a dispute over that history meant that a rejection of the opinion was reasonably perceived as being "in the ring": Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213 at [44] per Mason P). This will depend upon a number of matters including the extent of the dispute over the history, the nature of the expertise and the terms of the opinion. Taking the facts of Devaney, a dispute over an offender's history would not necessarily alert the parties to the possibility that the unanimous opinion of three psychiatrists concerning his suffering from psychotic illness was in issue.

90. In this case, Dr Jacmon was a psychologist. He was not a medical practitioner. As Hoeben CJ at CL has explained, in terms of a diagnosis of various mental illnesses and their effect upon an offender's "capacity for judgment" they stand in a different position to psychiatrists. The relevant parts of Dr Jacmon's report are set out in the judgment of Hoeben CJ at CL at [42] to [43]. A review of Dr Jacmon's conclusions as set out in [42] clearly suggests that the opinions in [3] and [4] of the conclusion section were based substantially on the history provided to him and not just the fact that the applicant had broken up with his girlfriend. The opinions he expressed in [5] of his conclusion concerning remorse were simply a restatement of what the applicant told him. In my view the nature of Dr Jacmon's opinions and the terms of his report were such that it should have been apparent that a rejection of the offender's version of events as recounted in that report meant that it was at least reasonably possible, even likely, that any relevant opinion he expressed would also be rejected.

91. I agree with the orders proposed by Hoeben CJ at CL.

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Decision last updated: 17 June 2015