Nguyen v The King

[2025] NSWCCA 42

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nguyen v R [2025] NSWCCA 42

Hearing dates:

21 February 2025

Date of orders:

26 March 2025

Decision date:

26 March 2025

Before:

Davies J at [1]
Dhanji J at [2]
Huggett J at [57]

Decision:

(1)    Leave to appeal is granted.

(2)    Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – cultivation of prohibited plants by enhanced indoor means – pervert the course of justice – whether denial of procedural fairness – where sentencing judge rejected evidence in psychologist’s report – where no indication issue taken – psychologist’s conclusion a matter of speculation – inherently implausible – no practical injustice – leave to appeal granted – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), s 319

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Drug Misuse andTrafficking Act 1985 (NSW), s 23(2)(a)

Cases Cited:

Chow v Director of Public Prosecutions(NSW) (1992) 28 NSWLR 593

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Da-Pra v R; R v Da-Pra [2014] NSWCCA 211

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

Hone v Western Australia [2007] WASCA 283; 179 A Crim R 138

Klewer v National Disability Insurance Agency [2023] FCA 630

McLaughlin v R [2025] NSWCCA 13

O’Neil-Shaw v The Queen [2010] NSWCCA 42

R v Klamo (2008) 18 VR 644; [2008] VSCA 75;

R v Nguyen [2024] NSWDC 273

R v Palu [2002] NSWCCA 381; 134 A Crim R 174

R v Rodriguez [2010] NSWSC 198

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Reberger v R [2011] NSWCCA 132

Richards v R [2023] NSWCCA 264

Weir v Regina [2011] NSWCCA 123

Category:

Principal judgment

Parties:

Huy Hong An Nguyen (Applicant)
Rex (Respondent)

Representation:

Counsel:
TF Woods (Applicant)
T Abdulhak (Respondent)

Solicitors:
KPT Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/00208620

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Nguyen [2024] NSWDC 273

Date of Decision:

5 July 2024

Before:

Abadee DCJ

File Number(s):

2021/00208620

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Huy Hong An Nguyen, was sentenced with respect to two counts of knowingly taking part in the cultivation of a number of prohibited plants in an amount not less than the applicable commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), and doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The applicant was afforded a combined discount of 20 percent with respect to each offence, comprised of 10 percent for his pleas of guilty, which were entered before and during trial, and 10 percent for his assistance to authorities. The applicant was sentenced to an aggregate sentence of 5 years and 6 months imprisonment with a non-parole period of 3 years, commencing on 4 June 2024.

At the sentencing hearing, the applicant tendered a report prepared by a psychologist. The psychologist assessed the applicant as suffering from a number of mental health conditions. He also expressed the opinion that there was a nexus between these conditions and the offending conduct. No issue was taken with the evidence of the psychologist, or the submissions of the applicant in reliance on that evidence by the sentencing judge in the course of the proceedings before him, although the Crown submitted on this application that a challenge to this evidence was implicit in the approach of the prosecutor at first instance.

The applicant’s sole ground of appeal was that the sentencing judge erred by rejecting the psychologist’s opinion about the connection between the applicant’s mental health conditions and offending conduct without giving him a fair opportunity to be heard on the matter.

The Court held (per Dhanji J, Davies and Huggett JJ agreeing), granting leave to appeal and dismissing the appeal:

1. The psychologist’s opinion was not challenged by the Crown in the course of the sentencing proceedings (at [27]-[33]).

2. It was open to the sentencing judge to reject the psychologist’s opinion. The psychologist’s statement that the symptoms “may well have been in existence” for a longer period was speculative. That was particularly so in circumstances where the applicant’s psychological state was very likely, perhaps inevitably, affected by the fact that he had been charged and was facing sentence (presumably with an expectation of imprisonment) for the offences. Nor was there any other evidence tendered in the sentencing proceedings supporting the presence of any issue with respect to the applicant’s mental health at the time of the offending conduct (at [42]).

3. There was no denial of procedural fairness to the applicant in the sense of there being “practical injustice”. The applicant put no sustainable argument as to how the sentencing judge might have been properly persuaded to accept the psychologist’s opinion based on the available evidence. While the applicant might have applied for an adjournment in order to provide evidence supporting the psychologist’s conclusion, there was no basis to find this was likely to be granted or, if granted, that such evidence could be obtained. This fell short of establishing the kind of practical injustice required (at [51]-[53]).

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, Weir v Regina [2011] NSWCCA 123, McLaughlin v R [2025] NSWCCA 13, Richards v R [2023] NSWCCA 264 cited.

JUDGMENT

1. DAVIES J:   I agree with Dhanji J.

2. DHANJI J:    The applicant, Huy Hong An Nguyen, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed upon him in the District Court of New South Wales at Sydney on 5 July 2024 by his Honour Judge Abadee.

3. The applicant was sentenced with respect to the following offences:

Count 1: knowingly taking part in the cultivation of a number of prohibited plants by enhanced indoor means, being an amount not less than the large commercial quantity applicable to the prohibited plant contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), namely 506 cannabis plants;

Count 2: knowingly taking part in the cultivation of a number of prohibited plants by enhanced indoor means, being an amount not less than the commercial quantity applicable to the prohibited plant contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), namely 99 cannabis plants; and

Count 3: doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW), namely supplying a false lease agreement to Van To Nguyen.

4. The applicant was afforded a combined discount of 20 percent with respect to each offence comprised of 10 percent for his pleas of guilty, which were entered before and during trial, and 10 percent for his assistance to authorities.

5. The applicant was sentenced to an aggregate sentence of 5 years and 6 months imprisonment with a non-parole period of 3 years, commencing on 4 June 2024. The non-parole period will end on 3 June 2027 and the full term will expire on 3 December 2029.

6. The indicative sentences for each of the three offences following the application of the 20 percent discount were: 4 years; 3 years and 2 months; and 1 year and 7 months.

7. The sole ground of appeal on which the applicant seeks to rely is as follows:

“The sentencing Judge erred by rejecting the psychologist’s opinion about the connection between the applicant’s mental health conditions and offending conduct without giving him a fair opportunity to be heard on the matter.”

8. The ground of appeal concerns the opinion expressed by a psychologist in a report tendered by the applicant attesting to a nexus between mental health conditions which afflicted the applicant, at least at the time he was assessed, and the offending conduct. The applicant complains that the sentencing judge denied him procedural fairness by rejecting the opinion without having afforded him an opportunity to be heard on the matter.

9. For the reasons set out below, I would grant leave to appeal but would dismiss the appeal.

The Facts

10. A statement of agreed facts signed by the applicant on 23 April 2024 was tendered during the sentencing proceedings. Having regard to the limited scope of the proposed appeal, the series of events the subject of the agreed facts are succinctly summarised, as follows.

Count 1

11. The conduct the subject of count 1 concerned two premises at Marrickville. The applicant made the premises available to unknown persons, knowing that those persons would modify and use the property to cultivate cannabis indoors. The applicant had, with his wife, leased premises in 2018, which they used for their textiles business. In November 2020, he took out a lease on the neighbouring property. In December 2020, the applicant moved his business and his family to a new address. Shortly after, a false electricity account was established and the premises were renovated for the purpose of being used for the enhanced indoor cultivation of cannabis plants by other unknown males. In February 2021, the applicant exercised his option to extend the lease for a further three years.

12. A search warrant was executed on the premises on 20 April 2020. The sentencing judge described what was found (at [15]-[17]):

“15   Upon entry, police observed a sophisticated hydroponic cannabis plantation inside both premises. The rooms where cannabis plants were actively growing, at various stages of growth, had white lamp shades and light globes hanging from the ceiling, large bags of fertilisers and water drums, a complex watering system, plants in plastic pots with bamboo stales and a complex electricity system was installed. The following was seized:

(a) 194 cannabis plants at 47a Chalder Street;

(b) 23.588kg of loose cannabis head at 47a Chalder Street; and

(c) 312 cannabis plants at 47 Chalder Street.

16   Inside the premises of 47 Chalder Street, there were six rooms actively growing cannabis plants. The lower floor of the factory was being used to grow cannabis plants whilst the upstairs rooms appeared to have been used to grow cannabis plants which had since been harvested. The front upstairs rooms contained several drying racks.

17   Towards the rear of the 47a Chalder Street premises, police observed a hole had been cut into the common wall between 47a leading into the rear yard of the 47 Chalder Street premises, which had been converted into an enclosed shed.”

13. The applicant’s liability for the offence was based on his sub-leasing of the premises and knowing that they would be used for cultivating cannabis by indoor means, including modifying the premises to facilitate that activity. The applicant was sentenced on the basis that while he knew the number of plants being cultivated was significant and numbered at least 200, he did not know the precise number.

Count 2

14. The conduct the subject of count 2 concerned the applicant, as the leaseholder, making available premises at Lewisham to unknown persons, knowing that those persons would modify the property to cultivate cannabis indoors. The applicant had, with his wife, leased the premises in November 2020. In April 2021, the applicant moved to a new address and provided the keys to the premises to other unknown males. On 16 July 2021, a real estate agent and property valuer attended the premises. The real estate agent observed multiple plants in pots which he believed to be cannabis and contacted police. Police attended the premises later that day. The sentencing judge described what was found (at [25]-[27]):

“25   Later that day, police attended the premises and observed an enhanced hydroponic indoor cannabis set-up. Police observed growing rooms with plants growing in pots and being assisted by nutrient-rich water systems, chemicals, lighting and ventilation.

26   On 17 July 2021, police executed a crime scene warrant at 110 Old Canterbury Road and seized ninety-nine cannabis plants at different stages of growth.

27   All of the windows had been blackened and various parts of the residence were reconstructed along with multiple transformers and electricity appearing to have been taken straight from the connection to the house. One room was being used to dry out cannabis plants for harvest.”

15. The applicant’s liability for the offence was based on his subleasing of the premises, knowing it would be used for cultivating cannabis by enhanced indoor means, including modifying the premises to facilitate that activity.

Count 3

16. The conduct the subject of count 3 concerned the applicant supplying a falsified sub-lease agreement to the owner of the two Marrickville premises, in an effort to frustrate or deflect police investigations and thereby pervert the course of justice. Within the same week that the police executed the search warrant on the Marrickville premises, the applicant met with the owner of those premises and provided a falsified sub-lease agreement. With the sub-lease agreement, the applicant provided a photocopy of two falsified New South Wales drivers licences, each of which contained false residential addresses. The applicant also provided a mobile telephone number purportedly belonging to the new lessees, but which was registered to another person by the name of Can Ly.

17. The applicant’s liability for the offence was based on the applicant providing the falsified documents to the owner of the Marrickville premises in relation to the sub-leasing of premises. The applicant was sentenced on the basis that, following the execution of the search warrant, he created and utilised a variety of false documents, which involved a level of planning and skill, with the intention of perverting the course of justice.

Proceedings on Sentence

18. The proceedings on sentence took place on 5 July 2024. Both parties provided written submissions and made oral submissions to the Court.

The Crown material

19. The Crown tendered a bundle of documents comprising a Crown sentence summary, a notice of committal, an indictment, a statement of agreed facts, the applicant’s New South Wales criminal history and custodial history and a sentencing assessment report dated 28 June 2024. The Crown also read a confidential affidavit of Detective Acting Superintendent Andrea Panozzo dated 4 July 2024.

The applicant’s material

20. Tendered on behalf of the applicant was an unsworn statement by the applicant signed 3 July 2024, an affidavit of the applicant’s de facto partner Ms Trang affirmed 22 May 2024, a psychological report prepared by Dr Carmelo Pollicina dated 23 June 2024, two character references, and a pathology report dated 28 June 2024 indicating that Ms Trang was pregnant.

21. It is useful here, given the proposed ground of appeal, to extract relevant parts of Dr Pollicina’s report dealing with the applicant’s mental health issues:

“Personal history

5) [The applicant] was born in Vietnam on XX September 1990. He has not had contact with his parents or his older sister for some considerable time. He indicated the relationship of his parents was an extra-marital affair that eventually led to the breakup of their respective marriages and to the birth of Mr Nguyen and of his older sister. Both of his parents each had children from their previous marital relationships, meaning [the applicant] has two half brothers and three half sisters.

6) He migrated to Australia with his family in 1998.

7) He disclosed to me that his parents were both excessively strict and detached towards him showing him very little loving care and support towards him. He described his relationship with his sister as having been similarly distant and detached.

8) [The applicant] completed his schooling without incident and went on to complete a degree in Information Technology at the University of Technology Sydney in Australia. His academic performance was quite good. He is currently employed as a full-time IT Support Worker for Harvey Norman in Bankstown and also manages two businesses involved in the manufacture of school uniforms.

9) He has been in a de-facto relationship with his partner for the past seven years and with her has had three children – a son and two daughters respectively aged six, four and sixteen months. His partner had been previously married and also has another two children – a daughter aged 13 and a son aged 11 – that also live with her and [the applicant].

10) [The applicant] described his relationship with his partner, his three children, and with his partner’s two children from her previous marriage, as being very mutually supportive, loving and caring, although the couple have experienced some financially very difficult times in the past and his partner struggles with tasks around the home. This leaves [the applicant] with both the financial and domestic burden.

Relevant mental health history

11) During my interactions with [the applicant], he disclosed to me that he had a very difficult childhood and adolescence owing to the affective detachment manifested towards him by his parents and older sister. There is extensive specialist literature that indicates that parental neglect is a form of child abuse that can have lasting physical and psychological effects on a person. Some of the psychological effects of parental neglect include:

• Poor impulse control, social withdrawal, and problems with coping an regulating emotions;

• Low self-esteem, self-confidence, and sense of self-worth;

• Negative emotions, such as guilt, fear, anger, shame, isolation, and distrust;

• Self-criticism, self-blame, and fear of rejection; and

• Pathological [behaviours], such as tics, tantrums, stealing, and self punishment.

12) Many of these effects appear to have been present in [the applicant] on assessment of him and may well have been in existence for a lengthier period of time earlier to and throughout his offending conduct.

12) [The applicant] also informed me that he had a very traumatic experience in 2018 when he found himself in need of re-financing an apartment that he owned in Bankstown. On this occasion it seems his father had forged his signature to transfer the property in to the name of his sister, thus leaving [the applicant] financially destitute. He reported the even to Police but no action was taken. [The applicant’s] partner was pregnant at the time of these events and [the applicant] came to find himself in marked financial stress.

13) He admitted that he was in a desperate financial condition when he carried out the offences and underestimated the seriousness of what he was doing.

14) [The applicant] informed me that he does not smoke cigarettes and that he does not use illicit substances. He does, however, occasionally drink alcohol.

15) [The applicant] also informed me that he was not taking any psychotropic medication for his psychological problems.

16) There is no apparent evidence of familiarity for mental disorders in [the applicant’s] family of origin.

17) In his referral to me for counselling, Dr Tuong indicated the presence of anxiety and depression in the presenting problems.

18) My own assessment of [the applicant] was based upon phenomenological observation, self-disclosure, and the application of the commonly used Depression, Anxiety and Stress Scale – DASS21 (a quantitative measure of distress along the three axes of depression, anxiety and stress).

19) In that regard, [the applicant] then presented with the following symptoms:

• severe level of depression (D=11);

• severe level of anxiety (A=9);

• severe level of stress (S=13);

• poor self-esteem;

• frequent sleep problems;

• thought ruminations;

• feelings of shame, guilt and remorse;

• preoccupation about the consequences of his offending behaviour; and

• the impact of his depression, anxiety, possible sentence, on his partner and children.

20) Given what would meet the criteria for a diagnosis of depression and anxiety, as well as his determination to rehabilitate himself with respect to his past offending behaviours, [the applicant] requested to see the Author of this report in regular counselling through the Mental Health Care Plan (described above).

Diagnosis

21) On the basis of the reported and observed symptoms, as well as the results of testing according to DASS-21, I am of the opinion that [the applicant] meets the criteria for a diagnosis of depression and anxiety (as per the Diagnostic and Statistical Manual for Mental Disorders (DSMV) commonly adopted in the field of psychiatry and psychology).

22) In my opinion, there appears to be a nexus between [the applicant’s] mental health conditions and his offending conduct. In this respect, it appears that the feelings of affective neglect from his family, the depression and anxiety he was likely experiencing at the time, and the severe financial stress he came to find himself in at the time, led [the applicant] to behave more impulsively than ordinarily that he engaged in criminal conduct.”

22. With the exception of the psychologist’s report, the evidence relied on by the applicant raises no issues of relevance for the purposes of this application.

Sentencing

23. The applicant was sentenced on the facts summarised above, and, generally, the evidence relied on by him. Having regard to the limited compass of the application, it is unnecessary to canvass his Honour’s reasons in any detail. It is sufficient to note that his Honour rejected the opinion of the psychologist as to the applicant’s offending being causally related to his mental health conditions. His Honour’s reasons for rejecting this aspect of the opinion are discussed below in the context of the proposed ground of appeal.

Ground of appeal – the applicant was denied procedural fairness in respect of his Honour’s findings regarding his subjective case

The issue

24. As noted above, the applicant tendered the report of Dr Pollicina. He relied on the conclusions in the report including the conclusion that (at par [22]):

“In my opinion, there appears to be a nexus between [the applicant’s] mental health conditions and his offending conduct. In this respect, it appears that the feelings of affective neglect from his family, the depression and anxiety he was likely experiencing at the time, and the severe natural stress he came to find himself in at the time, led [the applicant] to behave more impulsively than ordinarily such that he engaged in the criminal conduct.”

25. The applicant’s written submissions on sentence included the following:

“19. There would appear to be a causal connection between [the applicant’s] mental health issues, coupled with his financial difficulties, and the offending conduct;

20. This serves to reduce his moral culpability;”

26. Before the sentencing judge the Crown did not object to the admissibility of the report of Dr Pollicina or require the author for cross-examination. Nor did the Crown tender any evidence to contradict any opinion expressed by Dr Pollicina. The Crown’s written submissions were filed prior to the receipt of Dr Pollicina’s report and did not, consequently, address Dr Pollicina’s report.

27. In oral submissions the Crown did not make a submission directly challenging Dr Pollicina’s opinion about the nexus between the applicant’s mental health and offending behaviour, and the related diminution in the applicant’s moral culpability. Nonetheless, in this Court it was submitted that the opinion was challenged. This was on two bases: firstly, the position taken by the prosecutor below with respect to the applicant’s financial motivation in committing the offences; and secondly, a submission made regarding the applicant’s psychological condition.

28. With respect to the applicant’s motivation, the Crown prosecutor cross-examined the applicant’s wife with a view to adducing evidence to establish the offences were committed out of greed rather than financial necessity. In oral submissions on behalf of the Crown it was put that the evidence was consistent with the applicant and his wife having become accustomed to “a certain lifestyle”. It was submitted on behalf of the respondent in this Court that the effect of this cross-examination and the related submission was that the Crown had taken issue with the presence of any nexus between the applicant’s mental health conditions and his offending.

29. In support of the above contention it was submitted that the commission of the offences out of greed was inconsistent with impulsivity borne out of a connection between any mental health conditions and the offending conduct. I do not agree. Greed is a motivating factor and was established to be so in this case. Impulsivity is a measure of reduced resistance to motivating factors. Impulsiveness is not a binary concept. Some offences may be more impulsive than others. At one end of the scale might be an impulsive response to a slight, resulting in immediate personal violence. Offending such as that here can be seen to involve a more deliberate calculus, a decision being made to commit the offence to achieve the particular objective, greed. Nonetheless, a degree of impulsivity (which might also be described as a degree of recklessness or impairment of judgment) can, subject to acceptable evidence of the matter, be understood as having impacted that decision-making process.

30. The second basis on which it was submitted in this Court that the causal connection alleged by the applicant was challenged by the Crown was the following submission made by the Crown prosecutor to the sentencing judge:

“It’s also said - I simply say the psychological impact that the offender’s presently suffering under is no worse or better (?) than anyone anticipating that they may well be serving a full-time custodial sentence, and as the main breadwinner, that will impact no doubt heavily upon the family. It happens in each and every occasion, your Honour, and there is just nothing exceptional about the circumstances in relation to the impact and the hardship that will be suffered.”

31. This was a submission as to the applicant’s psychological condition at the time of sentence, tied to the impact of his imprisonment on his family (presumably, the point being that the hardship to third parties was not exceptional, and further, that any hardship or distress suffered by the applicant as a result of his concern for his family’s capacity to manage in his absence was not significant). It did not amount to a challenge to the evidence of Dr Pollicina or the submission of the applicant in reliance on it.

32. Given the above, I do not accept that the relevant opinion of Dr Pollicina was challenged by the Crown.

33. The applicant, in oral submissions before the sentencing judge, did not address the evidence of Dr Pollicina as to the postulated causal connection between his mental health and his offending. This did not however, reflect a retreat from what had been set out in the written submissions. In that regard, as submitted by the applicant’s counsel on the application before this Court, counsel was entitled to rely on the written submissions without there being any obligation to recite that material orally. Indeed, counsel should be encouraged to conduct proceedings efficiently, which includes not reciting submissions with respect to which no issue has been taken. Of course, had the Crown, or his Honour, taken issue with the submission it would be expected that the response would be forthcoming if the submission was to be maintained.

34. No issue was taken with the evidence of Dr Pollicina, or the submissions of the applicant in reliance on that evidence by the sentencing judge in the course of the proceedings before him.

35. Despite the absence of any challenge to the evidence or submission, and not having himself raised any issue, in dealing with Dr Pollicina’s report the sentencing judge found as follows (at [58]-[62)]:

“58   In Dr Pollicina’s report, however, the mental health professional determined that there was a connection between the offender’s mental health conditions, which he identified as depression and anxiety, and the offending conduct. In particular, the psychologist wrote that ‘it appears that feelings of affective neglect at the time, and the severe financial stress he came to find himself in at the time, led [the offender] to behave more impulsively than ordinarily such that he engaged in criminal conduct.’

59   Dr Pollicina arrived at that view, it appears, influenced by his assimilation of the notion of parental neglect with ‘child abuse’ manifested, amongst other things, by poor impulse control, low self-esteem and negative emotions.

60   I do not accept that opinion, to the extent that it emphasises the significance of ‘parental neglect’. For starters, it is at odds with the offender’s own explanation for his offending, which was entirely referable to his financial circumstances. For example, elsewhere the psychologist referred to the offender telling him that he had ‘underestimated the seriousness of what he was doing’. This is the language of miscalculation. Secondly, there is nothing to indicate any history of a diagnosis of depression or anxiety sourced in ‘parental’ or ‘familial’ neglect. Thirdly, the offender is not an unintelligent man: he received a good education culminating in completing a significant degree at the University of Technology Sydney. Fourthly, the nature of the offending was such that it could not be characterised as impulsive. It stretched over a period of 7 months. Whilst there were certain details which the offender did not know of, that was because he turned a blind eye to them, the offending for counts 1 and 2 were the product of economic calculation borne of straitened financial circumstances he and his family faced; not impulsivity. The offending for count 3 was again the product of planning designed to conceal his involvement. There was nothing impulsive about that either.

61   I agree with the Crown further, that such distress or depression currently manifested in the offender is attributable to his offending rather than factors in his life prior to the index offending.

62   Desperate or dire financial circumstances proximate to the offending help explain the offending but they were of a ‘situational’ kind. They do not excuse it and cannot in my view, be sheeted home to suggested child abuse Dr Pollicina regarded him as having endured. Though they help explain the circumstances of his offending, they do not diminish his moral culpability.”

36. The applicant contends that he was denied procedural fairness. That is, he contends that given the approach of the parties procedural fairness required the judge, before rejecting the applicant’s contention as to his reduced moral culpability, to raise with the applicant’s counsel the possibility the submission may not be accepted, thereby giving counsel the opportunity to respond. The applicant submits that the failure to do so caused the proceedings to miscarry, in turn warranting the intervention of this Court. The applicant further submits that if his contention is made good, the appropriate order is for the remittal of the proceedings to the District Court. To be clear, it was not submitted that this Court should make its own finding on the issue and proceed to resentence.

No obligation to accept the evidence

37. Before dealing with the applicant’s complaint and proposed remedy, it might be observed that it was not submitted that the sentencing judge erred in failing to accept the unchallenged evidence of Dr Pollicina. Indeed, the applicant’s written submissions are explicit in stating that he “does not rely on the factual merit of his case”. It is helpful in dealing with the proposed ground to understand why a complaint as to the rejection of the evidence could not be sustained.

38. The roles of the judge, prosecution and defence in the sentencing process are distinct. While the parties decide how they will conduct their cases, including as to the evidence to be led, “that does not bind the judge, except in the practical sense that the judge’s capacity to find facts will be affected by the evidence and the admissions”: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [31]. A sentencing judge is, therefore, not bound to accept particular evidence led by one party, even in the absence of challenge, or even where there has been a concession made by a party: DL v The Queen (2018) 266 CLR 1; [2018] HCA 26.

39. While it is for the judge to decide what evidence is to be accepted, a decision to reject uncontested evidence cannot be made capriciously. In the context of expert evidence, there are a large number of authorities dealing with the obligation, or otherwise, to accept uncontested opinions given by appropriately qualified experts. For present purposes it is sufficient to observe that a fact finder is not entitled to reject uncontested expert evidence without some rational basis for doing so: see eg, R v Rodriguez [2010] NSWSC 198; Reberger v R [2011] NSWCCA 132; Hone v Western Australia [2007] WASCA 283; 179 A Crim R 138; R v Klamo (2008) 18 VR 644; [2008] VSCA 75; Da-Pra v R; R v Da-Pra [2014] NSWCCA 211. The most common basis on which an expert opinion might be rejected is where the facts on which the expert relied have not been satisfactorily established. That was the case here.

40. Dr Pollicina’s reasoning can be summarised as follows:

• the applicant disclosed a childhood involving parental neglect;

• there is extensive specialist literature pointing to such neglect being a form of child abuse that “can have lasting physical and psychological effects on a person” including various symptoms as set out by Dr Pollicina;

• many of these symptoms “appear to have been present” on assessment of the applicant by Dr Pollicina (who first saw the applicant in June 2024);

• those symptoms “may well have been in existence for a lengthier period of time earlier to and throughout his offending conduct” (in 2020 and 2021).

41. The statement that the symptoms “may well have been in existence” for a longer period is, on its face, speculative. That is particularly so in circumstances where the applicant’s psychological state was very likely, perhaps inevitably, affected by the fact that he had been charged and was facing sentence (presumably with an expectation of imprisonment) for the offences. Nor was there any other evidence tendered in the sentencing proceedings supporting the presence of any issue with respect to the applicant’s mental health at the time of the offending conduct. Yet the presence of those symptoms at an earlier time was an essential step in Dr Pollicina’s reasoning to the conclusion that the applicant was suffering from mental health conditions arising from parental neglect at the time of the commission of the offences.

42. It was, given the above, open to the sentencing judge to reject the evidence of Dr Pollicina with respect to the impact of childhood neglect and the submission based on it. I am conscious that my reasons for this conclusion differ from those of the sentencing judge. With respect to the reasons his Honour gave for rejecting the opinion, it is not self-evident, for the reasons already discussed, that miscalculation or misjudgment in the context of a financial motivation is inconsistent with the operation of some psychological impairment impacting that judgment. Nor was there any evidence which provided a basis to conclude that the applicant’s intelligence or education militated against the existence and potential impact of a relevant psychological condition. Experience suggests that people with a range of intellects and capabilities may be afflicted by debilitating mental conditions. As to the length of time over which the offences occurred, while this suggests the offences were not impulsive, as already discussed, this is a matter of degree. While the applicant’s conduct over a period of months does not fit easily within the ordinary use of the word “impulsive”, it is nonetheless possible to understand the applicant’s actions in terms of him behaving more impulsively, or perhaps recklessly, than he otherwise might as a result of a degree of impairment in his functioning.

43. However, for the reasons I have given, whatever issue may be taken with the reasons of the sentencing judge, it was open for him to reject the conclusion of Dr Pollicina.

A denial of procedural fairness?

44. Returning to the proposed ground of appeal, while not contending that the sentencing judge was obliged to accept the opinion, the applicant complains of injustice in the rejection of the opinion without notice to him.

45. The applicant in written submissions relied on Klewer v National Disability Insurance Agency [2023] FCA 630 where Raper J, citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, said at [106] “… that the decision-maker is required to advise of any adverse conclusion which has been ‘arrived at which would not obviously be open on the known material’”. The short answer to this, based on what has been said above, is that the rejection of Dr Pollicina’s conclusion was obviously open on the known material. Perhaps appreciating the peril in relying on this statement, at the hearing of the matter the applicant relied heavily on the reasons of Basten JA in O’Neil-Shaw v The Queen [2010] NSWCCA 42 at [26]. His Honour, after referring to Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593 and R v Palu [2002] NSWCCA 381; (2002)134 A Crim R 174, said:

“… the factual basis [on which an offender is to be sentenced] 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.”

46. Evidence might be evidence of facts, or evidence of an opinion (usually an expert) based on facts. Basten JA in O’Neil-Shaw was dealing with the former. In that context, the quality of “implausibility” of a fact (viewed in the context of the whole of the evidence) is readily capable of assessment, albeit reasonable minds might differ as to the result of that assessment. Basten JA was not dealing with evidence of an opinion where rejection might be based on the implausibility of the conclusion, or, more likely, the facts or reasoning on which the conclusion was based.

47. In the present case it was not “inherently implausible” that the applicant could have been, as a result of his upbringing, suffering from a psychological condition impacting him at the time of his offending so as to make a causal contribution to that offending. That was, having regard to his description of his upbringing, and the relevant literature, a possibility. But the conclusion that he in fact was suffering such a condition was, as discussed above, a matter of speculation. Thus, while the fact was not “inherently implausible”, it was “inherently implausible” that this conclusion could be reached based upon the evidence before the court. As Basten JA said in the same paragraph relied on by the applicant, “[s]tatements of general principle must be understood in their context”. I do not regard what was said in O’Neil-Shaw as dictating a conclusion that there was a denial of procedural fairness in this case.

48. It is necessary then, to evaluate the applicant’s complaint against the minimum requirements of procedural fairness as they applied here. Procedural fairness does not exist in a vacuum, or as an end in itself. Rather the test is one of “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34], [37].

46. In the context of sentencing proceedings, in Weir v Regina [2011] NSWCCA 123, Garling J (with whom Macfarlan JA and Johnson J agreed) made the following observations, at [64]-[67]:

“64      It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264.

65   The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose.

66   The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].

67   One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18].”

50. The test of practical injustice has the result that cases involving complaints of a denial of procedural fairness will inevitably turn on the particular facts of the case. For example, the present case can be contrasted with the recent decision of McLaughlin v R [2025] NSWCCA 13 relied on by the applicant. In that case, while also involving the opinion of a psychologist, issue was joined between the applicant and the Crown, not as to the existence or relevance of a diagnosed condition, but rather as to the weight it was to be given (see at [100]). The sentencing judge in the course of the proceedings acknowledged the Crown’s concession that the condition was both present and had a role to play, with the argument limited to the degree to which it should figure in the sentencing exercise. Implicit in the reasons of N Adams J is the possibility that, had counsel not been led to understand the submission had been accepted, it would have been open to argue for the conclusion on the available evidence (see at [125]).

51. Consistent with the need to determine the question of “practical injustice”, in the course of argument, the applicant’s counsel was asked what course the applicant might have taken had the sentencing judge indicated his doubts as to the submission now said to have been unfairly rejected. No sustainable argument was put as to how the sentencing judge might have been properly persuaded to accept the opinion based on the available evidence. The most that could be said was that the applicant might have applied for an adjournment in order to provide evidence supporting the conclusion.

52. The question then is, did the denial to the applicant of the opportunity to seek an adjournment amount to practical injustice? In my view it did not. The applicant had the opportunity to put his case before the sentencing judge. He did so. Having regard to the inadequacy of the reasoning in the report he could not have expected the conclusion with respect to the asserted causal connection to have been accepted. Further, there is nothing in the evidence before the sentencing judge, or sought to be put before this Court, to suggest that the flaw in the reasoning was capable of being rectified. Had the psychologist been able to provide a foundation supporting the existence of the relevant symptoms at the time of the offending, it can be expected that he would have done so. While it is theoretically possible that other evidence could have been obtained, that had not been done. There was nothing to suggest it could be done. To say that steps might have been taken which might have provided a foundation for the opinion does not suggest that had an adjournment been sought, it was likely to have been granted, or that, if granted, the applicant would have produced evidence supporting the opinion. This, to my mind, falls short of establishing the kind of practical injustice required.

53. I would reject the applicant’s sole ground.

54. Before leaving the issue, none of what has been said is to suggest that it would not have been preferable for the sentencing judge to have advised the applicant’s counsel of his scepticism with respect to the relevant opinion, despite the absence of challenge from the Crown. That it would have been preferable is, however, not the test. It is also to be borne in mind that in the context of a sentencing hearing, a sentencing judge will typically be assimilating a large volume of information. The complexities of particular issues, particularly in the absence of any focus by the parties on the subject, may not become apparent until later. Of course, if this occurs, it remains open to the judge to notify the parties of the issue and call for submissions, reconvening the court if necessary. But, for the reasons given above, the sentencing judge was not obliged to do so in this case: see also Richards v R [2023] NSWCCA 264 at [62]. There was no breach of the rules of procedural fairness.

55. Given the Court heard full argument I would grant leave to appeal but dismiss the appeal.

Orders

56. I propose the following orders:

1. Leave to appeal is granted.

2. Dismiss the appeal.

57. HUGGETT J:   I agree with Dhanji J.

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Decision last updated: 26 March 2025