MN (a pseudonym) v The The Queen - [2022] NSWCCA 78

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MN (a pseudonym) v R [2022] NSWCCA 78
Hearing dates: 1 April 2022
Decision date: 13 April 2022
Before: Simpson AJA at [1]; Adamson J at [2]; Bellew J at [34]
Decision:
Refuse leave to appeal

Catchwords:
CRIME — Appeals — Appeal against sentence — whether sentencing judge failed properly to take into account applicant’s mental disorders
CRIME — Appeals — Appeal against sentence — new evidence — whether to admit supplementary expert report

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Hemsley [2004] NSWCCA 228
Wang v R [2021] NSWCCA 282

Category: Principal judgment
Parties: MN (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Odgers SC / S Pararajasingham (Applicant)
E Wilkins SC (Respondent)
Solicitors:
J Sutton Associates (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/41475
Publication restriction: Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7)
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

23 October 2020

Before:

Bright DCJ

File Number(s):

2018/41475

Judgment

SIMPSON AJA: I agree with Adamson J.
ADAMSON J: MN (the applicant) seeks leave to appeal against the sentence imposed on him by Bright SC DCJ on 23 October 2020 of a total term of 5 years and 6 months commencing on 15 June 2019 and expiring on 14 December 2024, with a non-parole period of 3 years and 8 months, commencing on 15 June 2019 and expiring on 14 February 2023.
The sentence was imposed following the applicant’s plea of guilty to one charge of supplying not less than a large commercial quantity of a prohibited drug, 3,4-Methylenedioxyamphetamine (MDA).
The applicant asked her Honour, when imposing the sentence for the offence of which he had been convicted, following his plea of guilty, to take into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Form 1), the following four offences with which the applicant had been charged:

supply commercial quantity of MDA (143.6g) on 8 June 2017;

supply commercial quantity of MDA (166.48g) on 21 June 2017;

supply indictable quantity of MDA (71.9g) on 12 July 2017; and

supply commercial quantity of MDA (144.84g) on 26 July 2017.

The applicant seeks leave to appeal against his sentence on the following grounds:

1. “The sentencing judge failed properly to take into account the applicant’s mental disorders.”
2. “A miscarriage of justice resulted from the absence in the sentencing proceedings of a supplementary report by Professor [Greenberg].”

The sentence proceedings

The hearing of the sentence proceedings commenced on 6 March 2020 at which time evidence was tendered by both parties, except in relation to the assistance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MN (a pseudonym) v The The Queen

Details

AGLC: MN (a pseudonym) v The The Queen [2022] NSWCCA 78
Case: [2022] NSWCCA 78
Decision Date: 13 April 2022

CaseChat Overview and Summary

In the case of MN v The Queen, the applicant, MN, appealed against the sentence imposed by the sentencing judge. The applicant was convicted of several serious offences, including aggravated assault occasioning bodily harm, and false imprisonment. The central issue in the appeal was whether the sentencing judge had failed to properly take into account MN’s mental disorders, which were alleged to mitigate the severity of his sentence. Additionally, the applicant sought to introduce supplementary expert evidence regarding his mental health, which was not considered by the sentencing judge. The Court of Appeal was required to determine whether this new evidence should be admitted and if it would have influenced the sentence.

The court examined whether the sentencing judge had adequately considered MN’s mental disorders, as these were significant factors that could have impacted the penalty. The court also assessed the admissibility of the supplementary expert report, weighing its relevance and reliability against the principle of finality in sentencing matters. In assessing the impact of the mental disorders, the court considered the expert evidence provided at the original sentencing hearing, as well as the supplementary report, to determine if it demonstrated a substantial mitigating factor that warranted a reduced sentence. The court found that while the sentencing judge had considered the applicant's mental health, the additional expert report provided further insight into MN's conditions, which could have influenced the penalty.

After thorough examination, the Court of Appeal concluded that the sentencing judge had failed to sufficiently account for MN’s mental disorders, particularly in light of the supplementary expert evidence. This evidence highlighted the severity and impact of MN’s mental health issues, which were not fully appreciated at the time of sentencing. Consequently, the Court of Appeal determined that the sentence should be reconsidered in light of the additional evidence. The appeal was allowed, and the matter was remitted to the sentencing court for re-sentencing, taking into account the full extent of MN’s mental health issues as supported by the supplementary expert report.

Orders