Rae v R

[2019] NSWCCA 284

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Rae v R [2019] NSWCCA 284
Hearing dates:	1 November 2019
Date of orders:	11 December 2019
Decision date:	11 December 2019
Before:	Macfarlan JA at [1] Harrison J at [2] Cavanagh J at [48]
Decision:	(1)   Grant leave to appeal. (2)   Allow the appeal. (3)   Quash the sentence imposed upon Mr Rae by Ellis DCJ on 17 August 2017. (4)   Remit the matter to Ellis DCJ for sentence, or another judge of the District Court if his Honour is not available. (5)   Direct that the matter be placed in the District Court arraignments list on 20 December 2019.
Catchwords:	CRIME – appeal – appeal against sentence – where applicant pleaded guilty to being an accessory after the fact to aggravated break, enter and steal – where applicant sentenced to a term of 4 years and 8 months imprisonment with a non-parole period of 3 years – whether miscarriage of justice arose because of omission by applicant’s legal representatives to place evidence of applicant’s history of mental illness before the District Court – where miscarriage of justice arose because sentencing judge did not have relevant evidence before him – appeal allowed – whether matter should be remitted for sentence
Legislation Cited:	Crimes Act 1900 (NSW), s 112(2) Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited:	Alkhair v R [2016] NSWCCA 4 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 Goodwin v R (1990) 51 A Crim R 328 Many v R (1990) 51 A Crim R 54 Pym v R [2014] NSWCCA 182 R v Abbott (1985) 17 A Crim R 355 R v Abou-Chabake [2004] NSWCCA 356 R v Diab [2005] NSWCCA 64 R v Fordham (1997) 98 A Crim R 359 R v Hemsley [2004] NSWCCA 228 Ratten v The Queen (1974) 131 CLR 510
Category:	Principal judgment
Parties:	Benjamin Thomas Rae (Applicant) Crown (Respondent)
Representation:	Counsel: J Paingakulam (Applicant) B Baker (Respondent)   Solicitors: Legal Aid Commission of NSW (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2017/18887
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 17 August 2018 Before: Ellis DCJ File Number(s): 2017/18887

Judgment

1. MACFARLAN JA: I agree with Harrison J.

2. HARRISON J: Benjamin Thomas Rae pleaded guilty on 11 April 2018 in the Newcastle Local Court to one count of being an accessory after the fact to an aggravated break, enter and steal offence pursuant to s 112(2) of the Crimes Act 1900. On 17 August 2018, Mr Rae was re-arraigned before Ellis DCJ in the District Court at Newcastle on an indictment and maintained his plea. He was then sentenced to a term of 4 years and 6 months imprisonment with a non-parole period of 3 years commencing on 4 July 2018 and expiring on 3 July 2021. The maximum penalty for this offence is 20 years imprisonment with a standard non-parole period of 5 years.

3. At the date of his sentence, Mr Rae was serving a pre-existing aggregate term of imprisonment imposed in the Newcastle Local Court on 3 November 2017 for a variety of offences including goods in custody, shoplifting, common assault, armed with intent to commit an indictable offence and drive whilst disqualified. The Local Court sentence was an aggregate head sentence of 2 years commencing on 1 September 2017 and expiring on 31 August 2019, with an aggregate non-parole period of 1 year and 2 months commencing on 1 September 2017 and expiring on 31 October 2018. When sentenced, Mr Rae had spent the period from 19 July 2017 until 1 September 2017 in pre-sentence custody solely referable to the present offence.

Factual background

4. On 5 December 2016, between about 9.46pm and 10.12pm, a total of 39 firearms were stolen from the firearm storage section of a Kennard’s storage facility in Newcastle West. The Crown case was that Michael Rae, one of Mr Rae’s brothers, attended the storage facility at about 2.30pm that day in the company of a woman. Michael Rae told an employee of Kennard’s that he needed somewhere to store his things and asked if he could store a firearm at the facility. The employee told Michael Rae that there were special firearms lockers and that there was one available that he could inspect. Michael Rae asked if he could measure the locker to ensure it would fit all his firearms. He was taken downstairs to the firearm storage section, where he observed the PIN used to gain access to that area via a keypad.

5. Mr Rae attended the storage facility at 5.40pm that same day. CCTV images show Mr Rae approaching the front counter wearing a pair of sunglasses, conversing with an employee and writing on a form. The Agreed Facts note that Mr Rae approached an employee at the front counter and asked if he could lease “the smallest cheapest locker”. Mr Rae said that “he needed to rent it that day”. Mr Rae completed a storage lease agreement in the false name of Daniel McRae and provided a driver licence to the employee in that name. He paid for the locker in cash. The employee offered to show Mr Rae the location of the locker, but he declined, saying he had a “sore foot”. Mr Rae added that his brother may come to use the storage locker that night. The employee gave Mr Rae a unique six digit PIN allowing him 24-hour access to the facility. Mr Rae left the office.

6. The firearms were stolen later that night. At 9.46pm, the PIN given to Mr Rae was used to access the loading dock at the Kennard’s storage facility. A vehicle containing three people was seen on CCTV entering the dock. Two people with their head and face covered emerged from the vehicle, whilst the third person remained in the vehicle and drove it back and forth within the loading dock. Two minutes later, the PIN obtained by Michael Rae was used to gain access to the firearms storage area. By about 10.12pm, the firearms had been loaded into the vehicle and driven away.

7. Police were notified and found cut padlocks to 20 storage safes on the floor of the firearms storage area. Each storage safe was empty. As a result of an audit of the owners of the storage safes, it was determined that 39 firearms had been stolen. In the proceedings on sentence, the solicitor for the Crown advised the Court that it was his understanding that approximately 25 of the firearms were subsequently recovered by police.

Subjective circumstances

8. Mr Rae did not give evidence or tender any documents. His criminal record and custodial history were part of the Crown sentencing bundle. There was no pre-sentence report or sentencing assessment report.

9. In his oral submissions on sentence, Mr Rae’s counsel stated that whilst Mr Rae had a good upbringing, and was not exposed to family violence, drugs or alcohol, both of his parents suffered from mental illness. In particular, Mr Rae’s counsel informed the Court that Mr Rae’s father suffered from chronic depression and bipolar disorder and that he had committed suicide when Mr Rae was 17 years old. Mr Rae’s counsel further informed the Court that when Mr Rae was 24, his mother was diagnosed with cancer and that Mr Rae’s mother committed suicide when he was aged 25.

10. Mr Rae’s counsel stated that, following his father’s death, Mr Rae immediately commenced using cannabis which was a “bad cannabis problem for many years when he was smoking at least a quarter of an ounce a day”. Mr Rae later used ecstasy and after his mother’s death [he] used ice and “developed a very severe ice problem, taking up to half a gram to 1 gram per day”.

11. In respect of Mr Rae’s mental health, his counsel indicated that Mr Rae had instructed him that he was diagnosed with borderline personality disorder and chronic depression and anxiety in 2016 when at the Dooralong Centre. He stated that Mr Rae “self-medicates” and had resisted taking Seroquel given to him by his doctor “because he says it makes him feel dopey all day and it also makes him put on weight”. Mr Rae’s counsel indicated that his “prospects of rehabilitation could be good or bad. It really is going to be entirely linked to his ability to stay abstinent from drugs, particularly ice …”. Mr Rae’s counsel also contended that special circumstances should be found due to his “powerful drug addiction” and that “[e]ven with completing an eleven month rehabilitation, he couldn’t stay abstinent…He will need help upon release with accommodation, perhaps referral to drug and alcohol services and the like”.

12. Mr Rae’s counsel submitted that a sentence with a non-parole period in the vicinity of 2 to 4 years would be appropriate. He indicated that he did not wish to be heard against the sentencing judge’s proposed head sentence of 4 years and 6 months with a non-parole period of 3 years.

13. Mr Rae now seeks leave to appeal against his sentence on the single ground that a miscarriage of justice occurred because of what he maintains is the incompetence of his legal representation in the District Court. That complaint arises from the fact that Mr Rae had a history of mental illness which he says he drew to the attention of his legal representatives and yet no application was made to his Honour for an adjournment in order to explore that history or to obtain either past medical records or a then as yet unavailable psychiatric assessment and report for sentencing purposes.

14. In order to make good that ground in this Court, Mr Rae sought to rely upon additional evidence that included, but was not limited to, a report dated 15 March 2016 from Dr Matthew Hocking, a consultant psychiatrist and a Hunter Mental Health Service Encounter Summary. The Crown did not accept that this material satisfied the test for the admission of new evidence set down in Goodwin v R (1990) 51 A Crim R 328. Mr Rae contended that this Court should in any event receive the material as evidence in this application upon the basis that it would cause him an injustice if it were not received (see Many v R (1990) 51 A Crim R 54) and that incompetent representation had left the sentencing tribunal to impose a sentence without the benefit of evidence of some fundamental fact: see R v Abbott (1985) 17 A Crim R 355.

15. In R v Abbott, Street CJ said this at 355-356:

“On the hearing of this appeal, the appellant’s counsel has come equipped with affidavits that prove further quite significant matters affecting her general emotional state at the time [of the offence] and providing assistance in the form of a psychiatrist’s report and a psychologist’s report. This material is highly relevant and ought to have been produced at the sentencing proceedings as it bears very significantly upon the determination of the sentence and the non-parole period. In the absence of that material, there can be little quarrel with the sentence, and the non-parole period determined by the learned judge, but taking into account that material, it establishes a case in which a shorter sentence and non-parole period were adequate to meet the requirements of criminal justice.

…

The evidence, it should be stated at the outset, does not qualify as fresh evidence but we have decided that it should be admitted in consequence of it having been made good on behalf of the appellant that she was incompetently represented at the sentencing proceedings and that that incompetence has brought about a miscarriage of justice. This case crosses the borderline separating poor quality, perhaps even inefficient, representation on the one side and incompetence of a degree causing miscarriage of justice on the other side. In order to remedy that we have thought it proper to admit the evidence and to proceed to evaluate the sentence ourselves in the light of the additional evidence.”

16. It is this passage upon which Mr Rae principally relies in the elucidation of his complaint that there has been a miscarriage of justice as the result of the loss of an opportunity to rely upon either the existing medical material or to secure an expert report dealing with his psychiatric or psychological health for the purposes of sentencing.

17. In order to attempt to resolve the issue of whether or not Mr Rae’s legal representatives relevantly failed to place evidence of his history of mental illness before the court or to seek an adjournment in order for such evidence to be obtained, this Court received evidence from both Mr Rae and from his former solicitor Kristy Anne Winter and his former barrister William Gregory Hussey.

18. The authorities make it clear that evidence from trial counsel as to the reason why the impugned course was taken is ordinarily irrelevant and inadmissible on appeal. In Alkhair v R [2016] NSWCCA 4, Macfarlan JA reviewed the authorities and identified the following relevant principles at [31]:

“(1) To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel’s conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial.

(2)    Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf.

(3)    Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant’s legal representatives’ reasoning at trial or to evidence as to communications between the appellant and those representatives.

(4)    The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open.”

19. In this Court, leave was granted to the parties to call evidence as to the communications between Mr Rae and his lawyers on the discrete issue of whether an adjournment should have been sought to enable medical evidence to be adduced. Accordingly, Mr Rae and his former lawyers gave evidence in the form of affidavits that were read in this Court and all deponents were cross-examined.

20. Mr Rae’s affidavit was dated 5 September 2019. Under the heading “Mental Health Instructions”, Mr Rae said this:

“2.    I was represented by Ms Kristy Winter…and Mr Bill Hussey…during my sentencing proceedings (‘my previous lawyers’)…

3.    I recall that I did tell my previous lawyers that I was diagnosed with Bipolar Disorder, Generalised Anxiety Disorder and Borderline personality Disorder when I was at Dooralong Transformation Centre in 2016 and that each of my parents committed suicide.

4.    I was never advised by my previous lawyers that medical notes concerning my mental health history should be obtained for my sentencing proceedings.

5.    I was never advised by my previous lawyers that a court adjournment could be sought to allow time to obtain medical notes concerning my mental health history. I did not know that an adjournment for this purpose could be sought. I never instructed my previous lawyers to seek such an adjournment.

6.    I was keen for the proceedings to be over as soon as possible. However, if I had been advised that it was in my interest to obtain medical notes concerning my mental health history and that an adjournment could be sought for this purpose, I would have instructed my previous lawyers to seek such an adjournment.”

21. When cross-examined in this Court by the Crown, Mr Rae conceded that he was told by his lawyers on the day of the sentencing proceedings that he would not be sentenced on that day if he were to get a report from a psychiatrist.

22. Ms Winter swore an affidavit on 18 October 2019. Part of that affidavit is as follows:

“4.    Relying on my notes and the affidavit of Mr Hussey, there was no mention by the client of any mental health issues that myself or Mr Hussey should be aware of prior to the morning of Court during any previous conference.

5.    The first time Mr Hussey and I met Mr Rae in person was in the cells on the date that had been set down for disputed fact hearing being 17 August 2018. There had been negotiations which ultimately resulted in the matter no longer proceeding to the disputed fact hearing that were [sic] still taking place on 16 August.

6.    I do not recall the exact conversations between Mr Rae and Mr Hussey with myself present. According to my notes and when considering the affidavit of Mr Hussey, Mr Rae wanted to proceed to sentence that day. Mr Rae wanted to sign the facts. My notes indicate Mr Rae said words to the effect of that he ‘just wants this out of the way’. My notes show that Mr Hussey took instructions on sentence. My notes further show that Mr Rae mentioned borderline personality disorder and rehab. My notes indicate that Mr Rae stated he had not been on any medication and did not want to take any.”

23. Mr Hussey swore his affidavit on 17 October 2019. It contained the following:

“6.    On reading the brief there was nothing that indicated to me [Mr Rae] had a psychiatric condition.

7.    My first conference with [Mr Rae] occurred on 14 June 2018 via audio visual link (‘AVL’). Ms Winter solicitor was present. The main thrust of this conference with [Mr Rae] was a disputed factual situation that [he] wanted to put before the court on sentence.

…

9.    I am fully aware that an offender’s psychiatric condition is a matter that may be significant in the assessment of an appropriate sentence.

10.    [Mr Rae] at no time indicated that he had a current or prior mental illness until the morning of sentence at court. I concede this was the first time I met [Mr Rae] in person.

11.    [Mr Rae] then informed me, amongst other things, that he was diagnosed with borderline personality disorder, anxiety and depression. Once I realised this position I then advised [Mr Rae] that it would be in his best interests to obtain a psychiatric report. I asked [him] a number of questions. He instructed he was not taking any mental health medications in custody. Enquiring upon his background I was also instructed that in his most recent time in the community he had not sought or taken any mental health medications.

12.    I was now very concerned and I advised [Mr Rae] that we could obtain a psychiatric report but that would mean a delay in his sentence date. I did not take the view that [he] was unfit to plead and so I could not override any instructions he gave me, once he was advised.

13.    [Mr Rae] enquired as to which judge he had and I informed him we were in Judge Ellis’s list. [He] expressed keenness to be sentenced by that judge. [He] specifically instructed me that he wished to go ahead with being sentenced on that day by Judge Ellis.

14.    The matter then proceeded to sentence before Judge Ellis.

15.    Had [Mr Rae] instructed me that he wanted to get a psychiatric report then I would have sought to have adjourned his matter and obtained a report.

16.    In hindsight, I might have been more forceful in advising [Mr Rae] as to the desirability of obtaining some psychiatric evidence. I thought, however, that [Mr Rae] was genuinely wanting to have the matter disposed of that day.”

24. In addition to this material, Mr Rae sought to refer to a considerable amount of further medical and psychiatric records collated and annexed to two affidavits of his current solicitor Frances Anne Low affirmed respectively on 29 and 31 October 2019. It is sufficient for present purposes to observe that this material appears clearly to support the fact that Mr Rae has had a considerable amount of contact as a patient with mental health professionals and facilities over some several years, as far back as 2008.

The sentence below

25. In sentencing Mr Rae, after referring to the maximum penalty and standard non-parole period, his Honour noted the plea of guilty that attracted a 25 percent discount. His Honour briefly summarised the facts, noting that Mr Rae had been an accessory by “actually hiring [the storage facility’s] smallest facility which then granted them 24/7 access to the complex”.

25. His Honour noted that Mr Rae had a “reasonably lengthy criminal history” and was serving the Local Court aggregate sentence. He was 33 at the time of the offence and 35 at the date of sentencing. His Honour indicated that he had taken into account the Ponfield guideline judgment. He said that “the type of item [that] was stolen represents some significant concern and the possession of which in itself, without being appropriately licensed, is a significant criminal act”. His Honour found that “the planning in this case is a little more than one normally sees in relation to offences of this type and it does constitute an aggravating factor”.

26. After again referring to the maximum penalty and standard non-parole period as reflections of the community’s attitude to this type of offending and as guideposts to an appropriate penalty, his Honour referred to Mr Rae’s subjective features in the following terms:

“I note that the offender had a somewhat problematic upbringing in the sense that he has lost both his parents in reasonably tragic circumstances and that the timing of those losses was quite adverse to him personally both in terms of his father’s suicide three weeks before he sat for the higher school certificate and then his mother’s suicide after she had been diagnosed essentially with terminal cancer when he was 25 years of age. He had a…significant ice addiction and he will need, if he wishes to move into a law-abiding lifestyle, to do something about his addiction.”

28. His Honour found special circumstances on the basis of the sentence being Mr Rae’s first lengthy period of imprisonment, the fact that the sentence was to be partly accumulated on the aggregate sentence imposed by the Local Court and the fact that Mr Rae needed a longer than normal period on parole to assist his reintegration and to deal with his substance abuse problems.

29. His Honour indicated that the starting point for the sentence he proposed to impose would be 6 years which, following the discount, produced the sentence of 4 years and 6 months with a non-parole period of 3 years.

Consideration

30. In my opinion, it is possible and preferable to deal with Mr Rae’s appeal to this Court without attempting to resolve the apparent conflict between him on the one hand and his former solicitor and barrister on the other hand concerning the issue of whether an adjournment of the sentencing proceedings should have been requested to enable medical evidence to be adduced.

31. As already noted, part of the material referred to by Ms Low in her affidavits, received in this Court on a provisional basis, was a report of Dr Matthew Hocking dated 15 March 2016. That report contained the following opinions:

“Thank you for referring Ben to see me for assessment of his mental state and suggestions for further management. Ben is a thirty-two-year-old former telesales manager suffering from a complex combination of bipolar disorder – mixed episodes, a cluster of anxiety symptoms, dysthymia, ADHD and cannabis/amphetamine dependence superimposed on a background of cluster B personality vulnerabilities. Ben’s bipolar disorder occurs against a background of a father also diagnosed with the same condition who committed suicide when Ben was aged seventeen. Ben’s bipolar disorder is evidenced by mixed episodes characterised by ‘highs’ lasting between twenty-four to forty-eight hours coupled with ‘lows’ that can range from one to two weeks. Ben’s ‘highs’ are characterised by an expansive mood, feelings of invincibility, a decreased need for sleep, excessive energy, excessive goal-directed behaviours, and disinhibited activities such as riding a bike at dangerous speeds. While Ben’s ‘lows’ are characterised by lethargy, feelings of apathy and hopelessness, irritability, hyperinsomnia and morbid thoughts. Furthermore, Ben’s cluster of anxiety symptoms and dysthymia include symptoms consistent with generalised anxiety and social anxiety as well as pervasive dysthymia including feelings of low self-esteem, shame and guilt. At present Ben denied suffering from a high or low mood in the context of his bipolar symptoms, rather stating his mood at present was more in his ‘level’ dysthymic state – feeling worthless, ashamed and with low self-esteem.

Ben detailed consistent symptoms of ADHD including features of inattention, hyperactivity and impulsivity. His inattention was characterised by frequently losing items, a difficulty with focus and attention, poor planning and organisation, distractibility and procrastination. His hyperactivity was evidenced by excessive fidgeting, impatience, and butting into conversations. Finally his impulsivity was evidenced by impulsive spending and impulsive substance misuse. Ben’s mood, anxiety and ADHD symptoms were all superimposed on a background of cluster B personality traits including antisocial traits and borderline personality vulnerabilities. His antisocial traits were evidenced by his extensive forensic history including charges for intimidation, shoplifting and larceny – offences which he states he has no remorse for; while Ben’s borderline vulnerabilities were characterised by emotional instability, relationship instability a fear of abandonment, a history of deliberate self-harm and recklessness, a poor sense of self and transient paranoia.

Ben’s history of substance misuse first commenced at the age of seventeen characterised by a pattern of daily cannabis misuse almost immediately. Ben’s cannabis dependence continued for the following fourteen to fifteen years however he stated that over the last ten months he has cut back his cannabis misuse as his abuse of methamphetamines took over. Ben first used crystal methamphetamines at the age of twenty-four however stated that at this time he only used it sporadically. Over the last two and a half to three years his methamphetamine misuse progressed quickly to heavy daily use smoking approximately 1g of crystal methamphetamines on a daily basis. Nonetheless he denied any intravenous use of substances and last used cannabis and methamphetamines three and a half weeks ago. He also admitted the recreational use of ecstasy, cocaine and hallucinogens however denied ever using any other illicit substances.

Ben detailed a past psychiatric history of initially being diagnosed with ADHD when aged eight. Initially he was placed on dexamphetamine however as this led to an exacerbation of his emotions he was changed to Ritalin with good effect. Nonetheless Ben admits being variably compliant with Ritalin during his younger years and eventually chose to cease the medication himself when aged seventeen. He next sought help for a mental health condition when aged eighteen at which time he saw a GP who diagnosed him with major depression. He was trialled on Efexor and Avanza however once again was non-compliant with the medication. Over the last twelve years he has had three admissions to hospital due to depression as well as drug-induced psychosis and Ben states that during these periods he has been prescribed antidepressants as well as Seroquel. While he couldn’t recall which antidepressants had been trialled once again he revealed that he was non-adherent to follow up and was not compliant with medication following his discharge from hospital.

Other salient features of Ben’s history include a family history of bipolar disorder in his father (who committed suicide) as well as major depression in his mother who once again committed suicide (when Ben was aged twenty-five). His paternal grandmother suffered from anxiety symptoms and he has two brothers who have misused illicit substances and who have extensive forensic histories (eg his younger brother is currently in prison after committing murder). Ben denied any personal past medical history, admitted allergies to bee stings however is not currently prescribed any medication.

On assessment of his mental state, Ben presented as a young Caucasian man who was slightly overweight. He was casually dressed and neatly groomed. Ben was cooperative throughout the interview, easy to engage with good eye contact and a fair rapport established. Nonetheless he had a nervous manner with feelings of low self-worth. Ben’s mood was dysthymic and anxious with a nervous and flat affect evident. There was no evidence of formal thought disorder, psychotic phenomena or perceptual disturbances. His insight was poor and his judgment also poor as evidenced by his non-compliance with medication and reliance on illicit drugs to cope with mental health symptoms. There was no evidence of cognitive impairment.”

32. Mr Rae conceded that this report did not achieve the heights referred to in Abbott, in that it does not provide an explanation for Mr Rae’s offending. However, he submitted that his longstanding anxiety, depression, borderline personality vulnerabilities and bipolar disorder, which led to three mental health hospital admissions in the period between 2004 and 2014, were significant to the sentencing exercise in at least two ways. First, Mr Rae’s mental illness may render him an inappropriate vehicle for general deterrence and secondly, a custodial sentence may weigh more heavily upon him: see, for example, R v Hemsley [2004] NSWCCA 228 at [34] and [35].

33. It is apparent from his sentencing remarks that his Honour took account of Mr Rae’s loss of his parents by suicide as well as his significant illicit drug problem. However, it is unsurprising in the absence of any evidence of his mental health challenges that his Honour made no reference to this at all. It is also apparent from the evidence of Mr Rae’s former solicitor and barrister that they were aware, if only in a general sense, of his history of mental illness at the time of the sentencing proceedings. In the events that occurred, submissions were made on Mr Rae’s behalf at the sentencing proceedings that included references to his diagnosis of borderline personality disorder and chronic depression and anxiety, among other things. However, in the absence of supporting medical opinion, Mr Rae’s legal representatives were not in a position to make, and did not make, the submission now made in this Court about moderation of general deterrence or the extent to which a custodial term might weigh more heavily upon him than an offender without similar mental health issues.

34. Mr Rae contended in these circumstances that no regard was given to his mental health in the determination of his sentence and that this has resulted in a miscarriage of justice.

35. In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, the High Court referred to the following matters in the determination of appeals under s 6(3) of the Criminal Appeal Act 1912:

“The determination of appeals under s 6(3)

[9] Section 5(1)(c) of the CAA confers on a person convicted on indictment a right to appeal by leave of the Court of Criminal Appeal against the sentence passed on the person's conviction. Where leave is granted, the determination of an offender's appeal is governed by s 6(3):

‘[T]he court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.’

[10] Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice: Abbott (1985) 17 A Crim R 355; Goodwin (1990) 51 A Crim R 328; Araya (1992) 63 A Crim R 123 at 129-130 per Gleeson CJ; Fordham (1997) 98 A Crim R 359 at 377-378 per Howie AJ; see also Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 395 per Gibbs CJ; [1986] HCA 26.

[11] It is accepted, however, that the appellate court may receive evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. Evidence of this description is routinely received by the Court of Criminal Appeal on the limited basis that it may be taken into account in the event the Court comes to re-sentence. It is evident that the Court of Criminal Appeal treated the material tendered on the appellant's behalf as having been admitted on this limited basis.” [Emphasis added]

36. Fresh evidence may be admitted without error being established where an applicant establishes that a miscarriage of justice has occurred by reason of incompetent or careless representation on sentence: R v Fordham (1997) 98 A Crim R 359 at 377-378. That is to be contrasted with the position “where a deliberate decision as to issues to be pursued is made” in which case “there is nothing unfair, and there will be no miscarriage of justice, in holding an accused to such a decision, even though it is conceivable (or might be thought by other advisers) that a different decision may have ‘worked rather better’”: R v Diab [2005] NSWCCA 64 at [19]; see also Ratten v The Queen (1974) 131 CLR 510 at 517 and R v Abou-Chabake [2004] NSWCCA 356.

37. In the present case, the decision to proceed to sentence before his Honour without seeking an expert medical opinion cannot strictly be characterised as a forensic decision in the sense that it involved a choice, made by Mr Rae’s legal representatives on his behalf, between competing possibilities with associated but unpredictable advantages and disadvantages. It is difficult to detect the existence of any substantive disadvantage to Mr Rae that might, or could, have resulted from adjourning the sentencing proceedings for that purpose. This does not appear to me to be a case in which Mr Rae should be bound by a decision made by his legal representative if the sentencing tribunal can be shown to have been deprived, for whatever reason, of the significant advantage of having material before it that potentially informed a very significant aspect of Mr Rae’s subjective case. Nor is this a situation in which Mr Rae is seeking to abandon the case on sentence that he ran before his Honour or to alter his course and run a substantially different case in this Court. Mr Rae’s simple proposition is that, for whatever reason, he has lost the opportunity, or has been deprived of the chance, of a better outcome that was fairly open.

38. The principle advanced by Mr Rae would appear to derive inspiration from what was said by Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 at 395 as follows:

“In a case such as the present, when there was no wrong decision of any question of law or other irregularity at the trial, and the verdict of the jury was not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the Court of Criminal Appeal can allow the appeal only if it considers that a miscarriage of justice has occurred by reason of the fact that the evidence now adduced was not called at the trial. Although many cases have provided a gloss on the words of s.6 and similar provisions, it is important to remember that the fundamental question is whether a miscarriage of justice has occurred, and that the principles that may be extracted from the authorities "should not ... be regarded as absolute or hard and fast rules": Green v. The King [1939] HCA 4; (1939) 61 CLR 167, at p 175. The circumstances of cases may vary widely, and it is undesirable to fetter the power of Courts of Criminal Appeal to remedy a miscarriage of justice. I respectfully agree with the statement of King C.J. in Reg. v. McIntee (1985) 38 SASR 432, at p 435, that ‘appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand’.

The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial…” [Emphasis added]

39. A situation not dissimilar to the present case arose for consideration by this Court in Pym v R [2014] NSWCCA 182. Fullerton J described the position there as follows:

“[46] It is clear that counsel who appeared on sentence was in possession of evidence (being Dr Furst's first and second reports and the unredacted third report) which addressed the applicant's psychiatric condition at the time he committed the offences. It was not submitted that counsel's failure to tender the three reports (the third in its unredacted form) amounted to incompetence or that any close examination of counsel's advice or reasons he gave for the forensic decisions he made is called for on the question whether the sentence proceedings gave rise to a miscarriage of justice.

[47] Counsel submitted that it was sufficient for the purposes of the appeal to establish that critical features of the applicant's psychiatric profile, explored by Dr Furst in the reports and foundational to his ultimate opinion that the applicant was in an altered state of consciousness at the time of the attack on Mr and Mrs Hicks, were not in evidence before the sentencing judge. Counsel submitted that since that evidence was available and relevant to sentence, to deprive the applicant of the opportunity to have that material considered in mitigation of sentence has been productive of a miscarriage of justice.

[48] The Crown submitted that the decision not to tender the material was both explicable and appropriate in circumstances where the applicant had entered pleas of guilty and was averse to giving evidence. The Crown submitted that to rely upon the redacted material from Dr Furst's third report would have effectively traversed the applicant's pleas and that there was nothing in the first two reports that added anything material to the sentencing exercise.

[49] It is necessary to examine Dr Furst's third report, in its unredacted form, and the fourth report that was tendered on the appeal in some detail. It is only by undertaking that exercise that the significance of what was not tendered can be assessed and the question whether a miscarriage of justice has been demonstrated can be meaningfully addressed. The first and second reports are not insignificant but the failure to tender them is not relied upon independently of the unredacted third report as constituting a miscarriage of justice.”

40. Later in her reasons, Fullerton J said this:

“[75] As the Crown emphasised, it is not for sentencing courts to decide what evidence should be adduced by the parties (see Madden v R [2011] NSWCCA 254 at [29]). Further, this Court, as a court of error, is not a forum for the revision and reformulation of the case presented at first instance (see Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [79]-[81]). However, in Zreika, Johnson J also observed (McClellan CJ at CL and Rothman J agreeing) that whilst the Court will not lightly entertain arguments that could have been advanced on sentence but were not, it may do so in exceptional circumstances where the Court is satisfied that compelling material was available but not tendered, or its significance not appreciated, and that a miscarriage of justice has resulted.

[76] It is not necessary for this Court to resolve the question of the weight that might have been attributed by the sentencing judge to the unpresented psychiatric material. Neither is it for this Court to consider any question bearing upon the competence of counsel in failing to place that material before the sentencing judge when no ground of appeal makes that challenge. The sole question is whether the failure to place the entirety of the material relevant to the applicant's mental state before the sentencing judge has resulted in a miscarriage of justice. If that question is answered affirmatively, the second ground of appeal does not need to be considered.

…

[84] For my part, I am satisfied that in light of the failure to tender material that addressed the applicant's mental health prior to the offending, at the time of the offending and for a measurable time thereafter, evidence which supported the opinions Dr Furst expressed in his unredacted third report, it is unsurprising that the sentencing judge was unable to afford any weight to Dr Furst's report. I am satisfied that were his Honour to have had the entirety of that evidence before him, his findings with regards to the relevance of the applicant's mental state at the time of the offence would not have been open to him. On any view, they were made on the basis of incomplete information.”

41. In my opinion, by analogy with the circumstances prevailing in Pym, a miscarriage of justice has occurred. The sentencing judge did not have before him evidence that had the significant potential reliably to inform his sentencing discretion. In so saying I acknowledge that Mr Rae has not yet obtained, and this Court has not seen, any additional medical opinion upon which he hopes to rely. It is sufficient to observe that Mr Rae’s history of illness suggests that a current review of his medical condition contemporaneously available with a sentencing decision would be a matter of potential significance to a sentencing tribunal.

42. In this last respect the Crown contends that even if his Honour had had the material explaining Mr Rae’s medical history, or possibly even an up-to-date report from an expert detailing his current psychiatric health, there can be no certainty that a different result would follow and that the sentence imposed by his Honour was in any event quite lenient in the circumstances. Moreover, as Mr Rae accepts, the medical material already available does not provide or suggest that his mental health offers an explanation for his offending. In my view, these are matters that can be raised when Mr Rae is resentenced. They are not matters that derogate from the fact that Mr Rae has been the subject of a miscarriage of justice in the way I have described.

43. In these circumstances I would grant leave to appeal and allow the appeal. The question that necessarily then arises is what should occur next.

44. In my opinion, the matter should be remitted to the sentencing judge for reconsideration in light of the medical records annexed to Ms Low’s affidavit or when and if Mr Rae obtains the further anticipated psychiatric or psychological assessment that he desires. In so saying, I appreciate that the question of remitter has not been without some controversy. The issue arose peripherally in Betts as the following passages reveal:

“[17] The question of whether the appellate court is empowered to remit the determination of a sentence appeal under the supplemental powers conferred by s 12(1) of the CAA and its analogues is controversial[20]. A general power of remittal was introduced into the CAA in 1987[21]. It is contained in s 12(2), which provides:

‘The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.’

[18] To the extent that the extrinsic material affords any assistance in identifying the object of the inclusion of the general power of remittal, it does not provide support for the conclusion that s 12(2) qualifies the conditional re-sentencing obligation imposed by s 6(3).

[19] As the Court of Criminal Appeal recognised in O'Neil-Shaw v The Queen, there is a tension between the terms of s 6(3) and recourse to the power of remittal. The utility of a power of remitter in a case such as O'Neil-Shaw, where the sentence hearing has been tainted by procedural irregularity, is evident. The question of whether it is available is not reached in this case. It might be a matter for consideration by the legislature.”

45. Fullerton J in Pym considered that remitter was appropriate. Her Honour, with the agreement of Hoeben CJ at CL and Price J, said this:

“[85] For that reason I am satisfied that the sentencing proceedings miscarried and that the matter should be remitted to the District Court for a fresh sentence proceeding. I express no view as to how those proceedings might be conducted or the evidence which might be tendered or called. That is a matter for the judgment of the parties.”

46. I consider that this Court should take a similar approach. That is particularly so having regard to the fact that no error has been identified in the way in which his Honour sentenced Mr Rae. His Honour should in the circumstances be given the opportunity to consider any further material that Mr Rae wishes to place before him. Correspondingly, the Crown should have the opportunity to respond to such material in such fashion as it may be advised.

Orders

47. In the circumstances, I would propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence imposed upon Mr Rae by Ellis DCJ on 17 August 2017.

4. Remit the matter to Ellis DCJ for sentence, or another judge of the District Court if his Honour is not available.

5. Direct that the matter be placed in the District Court arraignments list on 20 December 2019.

48. CAVANAGH J: I agree with Harrison J

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Decision last updated: 11 December 2019