Shaw v The King

[2024] NSWCCA 241

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Shaw v R [2024] NSWCCA 241

Hearing dates:

29 November 2024

Date of orders:

29 November 2024

Decision date:

20 December 2024

Before:

Davies J at [1];
N Adams J at [2];
Yehia J at [3]

Decision:

(1)   Grant leave to appeal.

(2)   Uphold the appeal.

(3)   Quash the sentence imposed by the District Court on 22 January 2024.

(4)   In lieu of the sentence imposed in the District Court, impose an aggregate term of imprisonment of two years and three months, commencing 2 September 2023 and expiring 1 December 2025 with a non-parole period of one year and three months, expiring on 1 December 2024.

Catchwords:

CRIME – Appeals – aggravated enter dwelling with intent – steal property from dwelling house – larceny – whether there was a miscarriage of justice arising from the failure of the applicant’s legal representatives to place important evidence relevant to the applicant’s subjective case – respondent’s concession that it is open to the Court to find the ground of appeal established – the absence of the material deprived the sentencing judge of a full consideration of the applicant’s circumstances – miscarriage of justice established – ground upheld – resentence

Legislation Cited:

Crimes Act 1900 (NSW), ss 111(2), 117, 148

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

Cases Cited:

BB v R [2024] NSWCCA 13

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

ET v R [2024] NSWCCA 131

Khoury v The Queen (2011) 209 A Crim R 509; [2011] NSWCCA 118

McInnes v R [2024] NSWCCA 104

R v Birks (1990) 19 NSWLR 677

R v Fordham (1997) 98 A Crim R 359

Rae v The Queen [2019] NSWCCA 284

Rossall v R [2021] NSWCCA 200

Shortland v R [2024] NSWCCA 174

Stubbings v R [2023] NSWCCA 69

Tsiakas v The Queen [2015] NSWCCA 187

Category:

Principal judgment

Parties:

Jason Shaw (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Hughes (Applicant)
C Tran (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2023/00001325; 2023/00078316

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

-

Date of Decision:

22 January 2024

Before:

Herbert DCJ

File Number(s):

2023/00001325; 2023/00078316

HEADNOTE

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

The applicant, Jason Shaw, sought leave to appeal against the sentence imposed on him by Herbert DCJ in the District Court to one count of aggravated enter dwelling with intent to commit a serious indictable offence contrary to
s 111(2) of the Crimes Act 1900 (NSW), one count of steal property from a dwelling house contrary to s 148 of the Crimes Act, and two counts of larceny contrary to s 117 of the Crimes Act.

Herbert DCJ sentenced the applicant to an aggregate sentence of imprisonment for 2 years and 6 months, commencing on 2 September 2023 and expiring on 1 March 2026, with a non-parole period of 1 year and 6 months, expiring on 1 March 2025. The sentencing judge applied a 25% discount to reflect the utilitarian value of the applicant’s plea of guilty.

On 5 December 2022, the applicant entered an apartment complex in Surry Hills and stole a number of items including a MacBook Pro laptop valued at $3000. The victim was asleep in the unit and awoke to see the applicant kneeling beside her desk attempting to unplug her laptop, before running away carrying a number of stolen items. Later that day, the applicant walked into the cool room of Galluzzo Fruiterers where employees kept their personal belongings and stole items including a wallet and Airpods valued at $300 from two of the employees’ backpack and jacket.

On appeal, the applicant deposed that the solicitor appearing for him on the sentence proceedings was aware of his history of sexual abuse and a civil claim that was brought in relation to it. Leading up to the sentencing proceedings, the applicant instructed his solicitor to obtain a “pre-sentence” or psychological report. He was advised by his solicitor that a report was not necessary.

The sentence hearing was conducted on 22 January 2024. Notwithstanding the fact that the applicant’s history of abuse was known to his legal representative, no effort was made to obtain material pertaining to the applicant’s history of sexual abuse, including a psychological or psychiatric report relating to any potential impact upon the applicant by reason of the abuse.

A factual dispute arose as to whether the applicant instructed his solicitor to obtain a report for the purpose of the sentencing proceedings, however, it was agreed that the Court was not required to resolve that dispute.

The applicant sought leave to appeal against his sentence on one ground:

1. The sentencing proceedings and the sentence judgment were affected by a miscarriage of justice arising from the failure of the applicant’s legal representatives to place before the Court important evidence relevant to the applicant’s subjective case.

The respondent conceded that it is open to the Court to find that this ground of appeal has been established on the basis of the applicant’s evidence filed on appeal. There was no error on the part of the sentencing judge in the way that her Honour dealt with the sentence proceedings. Instead, the sentence proceedings miscarried because of the absence of relevant and compelling subjective material that had the capacity to impact upon the sentence in a way beneficial to the applicant.

The Court held per Yehia J (Davies J and N Adams J agreeing) allowing leave to appeal, upholding the appeal and re-sentencing the applicant:

As to ground 1, per Yehia J at [43], [56], [57] (Davies J at [1] and N Adams J at [2] agreeing) upholding ground 1:

1. It is well-established that an applicant is generally bound by the conduct of counsel at first instance, and they have a wide discretion to conduct those proceedings as they see fit. This court does, however, have the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.

R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359; Khoury v The Queen (2011) 209 A Crim R 509; [2011] NSWCCA 118; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25; McInnes v R [2024] NSWCCA 104; BB v R [2024] NSWCCA 13; Tsiakas v The Queen [2015] NSWCCA 187

2. The subjective material relating to the applicant’s history of abuse and related civil claim is compelling subjective material that had the capacity to impact on the sentence in several important ways including reducing the applicant’s moral culpability and moderating the weight to be afforded to general deterrence and denunciation. The material also had the capacity to impact upon the assessment of the applicant’s future prospects of rehabilitation.

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

3. The absence of the material during the sentence proceedings, deprived the sentencing judge of a full consideration of the applicant’s circumstances and resulted in a miscarriage of justice.

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25; McInnes v R [2024] NSWCCA 104; BB v R [2024] NSWCCA 13; Tsiakas v The Queen [2015] NSWCCA 187; Rossall v R [2021] NSWCCA 200; Shortland v R [2024] NSWCCA 174; R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359; Khoury v The Queen (2011) 209 A Crim R 509; [2011] NSWCCA 118; ET v R [2024] NSWCCA 131; Stubbings v R [2023] NSWCCA 69

JUDGMENT

1. DAVIES J: I joined in the orders of the Court on 29 November 2024 for the reason given by Yehia J.

2. N ADAMS J: The reasons provided by Yehia J reflect my reasons for joining in the orders of the Court on 29 November 2024.

3. YEHIA J: Jason Shaw (“the applicant”) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Herbert DCJ (“the sentencing judge”) in the District Court of New South Wales at Sydney on 22 January 2024.

4. On 9 November 2023, the applicant pleaded guilty in the Local Court to the following offences:

1. One count of aggravated enter dwelling with intent to commit a serious indictable offence contrary to s 111(2) of the Crimes Act 1900 (NSW);

2. One count of steal property from a dwelling house contrary to s 148 of the Crimes Act; and

3. Two counts of larceny contrary to s 117 of the Crimes Act.

5. The sentencing judge imposed an aggregate sentence of imprisonment for 2 years and 6 months, commencing on 2 September 2023 and expiring on 1 March 2026, with a non-parole period of 1 year and 6 months, expiring on 1 March 2025. The following table sets out the offences for which the applicant was sentenced, and the indicative sentences (following the application of a 25% discount to reflect the utilitarian value of the plea of guilty) identified by the sentencing judge:

Charge	Section	Offence	Indicative Sentence
H93053474 Seq 3	Section 111(2) of the Crimes Act	Aggravated enter dwelling with intent to commit strictly indictable offence	2 years and 3 months
H93053474 Seq 4	Section 148 of the Crimes Act	Steal property from dwelling house	1 year and 1 month
H92524222 Seq 1	Section 117 of the Crimes Act	Larceny	9 months
H92524222 Seq 2	Section 117 of the Crimes Act	Larceny	9 months

6. On 29 November 2024, at the conclusion of the hearing, the Court made orders granting leave to appeal, upholding the appeal, quashing the sentence imposed by the District Court on 22 January 2024, and resentencing the applicant to an aggregate term of imprisonment of 2 years and 3 months, commencing on 2 September 2023 and expiring on 1 December 2025, with a non-parole period of 1 year and 3 months, expiring on 1 December 2024.

7. What follows are my reasons for joining in the orders of the Court.

Ground of Appeal

8. The applicant appealed on the following ground:

Ground 1: The sentencing proceedings and the sentence judgment were affected by a miscarriage of justice arising from the failure of the applicant’s legal representatives to place before the Court important evidence relevant to the applicant’s subjective case.

9. The “important evidence” that was absent in the sentence proceedings related to the applicant’s history of sexual abuse and the associated onset of mental health conditions and substance abuse.

10. In support of the ground of appeal, the applicant relies upon his affidavit affirmed on 14 October 2024; the affidavit of Julian Stevens affirmed on 30 October 2024; and the confidential affidavit of Julian Stevens affirmed on 19 November 2024. The Respondent relies on the affidavit of James Barnett affirmed on 24 November 2024.

11. The applicant deposes that the solicitor appearing for him on the sentence proceedings was aware of his history of sexual abuse and a civil claim that was brought in relation to it. Leading up to the sentence proceedings, the applicant instructed his solicitor to obtain a “pre-sentence” or psychological report. He was advised by his solicitor that a report was not necessary.

12. The applicant’s solicitor at first instance deposes that in 2023, the applicant told him that he had been “a victim of child sexual abuse in a care institution” and that he had instructed solicitors to “take legal action on [his] behalf” and that it “could be helpful at [his] sentencing”. The solicitor then acting for the applicant states that he did not subsequently receive any instructions to obtain a psychological report or “pre-sentence” report in the matter and that the applicant did not want the proceedings delayed to obtain such material.

13. The sentence hearing was conducted on 22 January 2024. Notwithstanding the fact that the applicant’s history of abuse was known to his legal representative, no effort was made to obtain material pertaining to the applicant’s history of sexual abuse, including a psychological or psychiatric report relating to any potential impact upon the applicant by reason of the abuse.

14. The factual dispute that arises relates to whether the applicant instructed his solicitor to obtain a report for the purpose of the sentence proceedings.

15. It is common ground that this Court is not required to resolve the factual dispute. The respondent acknowledges that it is open to the Court to find that the ground of appeal has been established. A very limited subjective case was put to the sentencing judge and the applicant was denied evidence that had “the significant potential reliably to inform [the] sentencing discretion”: Rae v The Queen [2019] NSWCCA 284 at [41] per Harrison J, as his Honour then was (Macfarlan JA and Cavanagh J agreeing).

16. The evidence clearly establishes that as of 2023, the applicant’s solicitor was aware of the applicant’s history of abuse and the institution of civil proceedings and yet the issue was not pursued. In light of the respondent’s concession, it is not however necessary to resolve the factual dispute.

Circumstances of the offending

17. On 5 December 2022, at about 7:12am, the applicant was seen entering an apartment complex in Cleveland Street, Surry Hills through a resident entry gate. Once on level 5 of the complex, CCTV captured the applicant walking down the hallway, attempting to gain entry into a number of apartments by pulling at their door handles. The applicant was successful in entering one of the units.

18. The victim, who was asleep in the unit, awoke to see the applicant kneeling beside her desk attempting to unplug her laptop. The applicant said “Sorry”, before running away carrying a number of stolen items. The items included a tablet valued at $600, a Kindle worth $200, a MacBook Pro laptop valued at $3000, $100 in cash, and a Bank of China credit card. The entry into the victim’s home is the subject of the aggravated enter with intent charge, while the stealing of the property is the subject of the steal in dwelling charge.

19. At about 12:45pm on the same day, the applicant walked into the cool room of Galluzzo Fruiterers, to an area where employees keep their personal belongings. CCTV captured the applicant taking a backpack and a jacket and searching through the belongings of the victims, Mr Galluzzo and Mr Keyen. From Mr Galluzzo’s jacket pocket, the applicant took a wallet, chequebook and market ID. From Mr Keyen’s backpack, the applicant stole a Gucci wallet valued at $600, bank cards, photo ID and apple Airpods valued at $300.

20. On 6 December 2022, police attended the applicant’s premises where they recovered the stolen property belonging to Mr Galluzzo and Mr Keyen. The applicant was arrested on 2 January 2023.

Remarks on Sentence

21. Following a summary of the facts, the sentencing judge made a number of findings. In relation to the offence of enter dwelling with intent, her Honour found that the offence was “not opportunistic”. It was premeditated to “a modest degree”. Her Honour noted that the experience would have been a “terrifying” one for the victim. The objective seriousness of that offence was assessed to be below the mid-range.

22. In relation to the offence of stealing from the victim’s dwelling, the quantity and value of the goods was found to be “not modest”. However, the offence was assessed to be in the lower range of objective seriousness.

23. With respect to the two offences of larceny, the sentencing judge noted that the property was recovered and assessed each offence as falling in the lower range of objective seriousness.

24. The sentencing judge had very little evidence relating to the applicant’s subjective case. The only subjective material before the Court were breach reports from Corrective Services, a letter written by the applicant’s mother, a letter written by the applicant, and a letter from Tribal Warrior.

25. From that material, the sentencing judge noted that the applicant was 44 years old at the time of sentencing. In his letter to the Court, the applicant spoke of the fact that he has three “beautiful daughters” aged nine, seven and four years old and described them as “the best and most precious thing in his life”. The mother of his children is a drug user and, at the time of the sentencing proceedings, was in custody. Due to the incarceration of both parents, two of his daughters were being cared for by the applicant’s mother. The third was in the care of the applicant’s grandfather.

26. The sentencing judge noted that the applicant said he had received drug treatment whilst in prison. He expressed some remorse to his victims and the community.

27. The applicant has experienced a number of deaths in his family. Some six months prior to the sentence proceedings his young nephew died. The applicant was not allowed to attend the funeral. Six weeks later the applicant’s brother died. Once again, the applicant was not permitted to attend the funeral. Following his brother’s death, the applicant’s mother suffered a heart attack, but did not die.

28. The sentencing judge remarked that the applicant was “depressed and withdrawn” because he was unable to be there for his mother. The applicant acknowledged that he needed to take steps to take control of his life and wanted to be at home to care for his mother if she became ill and assist her with the care of his daughters.

29. The applicant’s mother, in her letter to the Court, confirmed that she had the care of two of the applicant’s children. Her health had declined and she suffers from asthma, chronic obstructive pulmonary disease (“COPD”), and emphysema. The sentencing judge acknowledged that she is also still recovering from the effects of two coronary heart spasms.

30. While in custody, the applicant had obtained a certificate of acknowledgement in relation to participating in “induction, orientation and health survival tips”. His participation was described as “polite” and “respectful”. The sentencing judge was provided a letter from Tribal Warrior, a not-for-profit Indigenous community organisation based in Redfern, providing activities and programs designed to empower individuals and community through connection to culture and family. The letter confirmed that Tribal Warrior was prepared to assist the applicant upon his release into the community.

31. The breach reports from Corrective Services revealed the applicant had failed to adhere to the requirements of an Intensive Correction Order (“ICO”) to which he was subject. The sentencing judge took into account, as a “significant matter of aggravation”, that the applicant was subject to conditional liberty at the time he committed the offences. Her Honour found that the applicant has some prospects of rehabilitation although could not be satisfied that he would not commit further offences.

32. The sentencing judge had regard to the additional degree of hardship in custody due to the impact of the COVID-19 pandemic, the loss of family members, and being unable to attend the funerals of his nephew and brother, and the applicant’s concerns about his mother’s health.

33. General and personal deterrence were determined to be important considerations in sentencing the applicant. The sentencing judge determined that no penalty other than imprisonment was appropriate. In imposing the term of imprisonment there was a degree of accumulation on the applicant’s existing sentence to reflect the separate nature of the offences and the overall criminality.

34. Her Honour made a finding of special circumstances primarily on the basis that the applicant would benefit from an extended period of supervision to ensure that he had the opportunity to address his drug relapse prevention. Her Honour discounted the indicative sentences by 25% to reflect the utilitarian value of the plea.

35. Lastly, having determined that the total aggregate sentence was less than three years, the sentencing judge considered, but rejected, the alternative of imposing an ICO. Her Honour found that serving the sentence by way of ICO in the community was not more likely to address re-offending in a manner that may adversely affect community safety.

Ground of Appeal

36. As indicated above, the respondent concedes that it is open to the Court to find that this ground of appeal has been established on the basis of the applicant’s evidence filed on this appeal, and the affidavit of Mr Barnett affirmed on 24 November 2024. That is so without resolving the factual controversy as to the obtaining of a psychiatric report.

37. It must be observed that each party has provided significant assistance to the Court by way of their comprehensive written submissions supplemented by oral submissions. In addition, the position taken by the respondent, which is commendable, allows me to deal with this ground of appeal with some brevity.

38. The applicable principles are not in dispute and are helpfully summarised in the respondent’s written submissions. The flexibility of appellate courts to accept new evidence where it is necessary to do so, to avoid a miscarriage of justice has been accepted by the High Court in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (“Betts”) at [2], [10] per the Court, comprising French CJ, Kiefel, Bell, Gageler and Gordon JJ. See also McInnes v R [2024] NSWCCA 104 at per N Adams J at [61] per N Adams J (Davies and McNaughton JJ agreeing); BB v R [2024] NSWCCA 13 at [103] per R A Hulme AJ (Davies and Huggett JJ agreeing).

39. The applicable principles were summarised by Beech-Jones J (Leeming JA and Johnson J agreeing) in Tsiakas v The Queen [2015] NSWCCA 187 at [44]:

“With both appeals against conviction and sentences, it is not sufficient to warrant intervention to simply point to some failing, even a gross failing, of the legal representative who appeared during the sentence proceedings. In conviction appeals, where incompetence to the relevant standard is demonstrated, the Court considers whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24]). In sentence appeals an analogous principle applies. Thus this Court has considered whether ‘compelling material was available but not tendered, or its significance not appreciated’ (Pym v R [2014] NSWCCA 182 at [75] per Fullerton J, with Hoeben CJ at CL and Price J agreeing; ‘Pym’), whether material of ‘significance’ was not presented (R v Abbott (1985) 17 A Crim R 355, 356 per Street CJ) or whether the sentencing court was deprived of a consideration of an offender’s circumstances (Munro at [25] per Beazley JA). However, it has also been said that ‘it will be a very rare case’ that a miscarriage of justice will have occurred ‘simply because of a defect in submissions made to a sentencing judge by defence counsel’ (Puan at [55] per Howie J). Again these observations reflect the approach adopted with complaints of a denial of procedural fairness namely that ‘[f]airness is not an abstract concept. [it] is essentially practical’ and that ‘the concern of the law is to avoid practical injustice’ (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ).”

40. The following principles summarised by Garling J (Bathurst CJ and Rothman J agreeing) in Rossall v R [2021] NSWCCA 200 (“Rossall”) at [82]-[85] are also of relevance:

“It is established by authority that profound childhood deprivation, or the experience of growing up in an environment surrounded by alcohol abuse and violence, can compromise a person’s capacity to mature and to learn from experience. Such early adverse effects do not necessarily diminish with the passage of time: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [43]-[44].

As was pointed out in Bugmy, childhood exposure to extreme violence and alcohol abuse may explain an offender’s recourse to violence when frustrated, such that their moral culpability, and their inability to control their impulses, may be substantially reduced.

As well, in the course of sentencing, the fact that an offender is or was suffering from a mental disorder or other mental affect is relevant. Either can have the effect of reducing a person’s moral culpability, and have an ameliorating effect on general deterrence, retribution and denunciation: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [53].

The ways in which mental illness or conditions may affect the sentencing process were comprehensively described in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. These matters do not need to be set out in detail here.”

41. It was acknowledged by Garling J (Bathurst CJ and Rothman J agreeing) in Rossall at [87] that appeals will not necessarily succeed simply because more material could have been provided to a sentencing judge:

“But the mere fact that more fulsome material could have been presented to the Judge hearing submissions on the sentence, is not of itself and without more, sufficient to result in a successful appeal. That is because this Court is a court of error, and as a matter of principle, an appellant is not entitled to simply have this court re-sentence them on the basis that a second attempt at the presentation of evidence may produce a more favourable outcome.”

42. More recently, in Shortland v R [2024] NSWCCA 174 Stern JA (Cavanagh and Sweeney JJ agreeing), held that regardless of the incompetence of counsel, an appeal against sentence ought to be allowed in the circumstances of that case, because the applicant would suffer a practical injustice in not having subjective evidence before the Court, and it is the concern of the Court to avoid practical injustice: Shortland at [45], [49] per Stern JA (Cavanagh and Sweeney JJ agreeing). Her Honour remarked that sentence proceedings “may give rise” to a miscarriage of justice in circumstances, where material evidence was available and relevant to sentence but the offender was deprived of the opportunity to have that material considered in mitigation: Shortland at [45]-[49] per Stern JA (Cavanagh and Sweeney JJ agreeing). In that case, had the evidence been before the sentencing court there would have been a material prospect of the applicant receiving a lesser sentence: Shortland at [50] per Stern JA (Cavanagh and Sweeney JJ agreeing).

43. It is well-established that an applicant is generally bound by the conduct of counsel at first instance, and they have a wide discretion to conduct those proceedings as they see fit: R v Birks (1990) 19 NSWLR 677 at 683-685 per Gleeson CJ (McInerney J agreeing); R v Fordham (1997) 98 A Crim R 359 at 377 per Howie AJ (Hunt CJ at CL and Smart J agreeing); Khoury v The Queen (2011) 209 A Crim R 509; [2011] NSWCCA 118 (“Khoury”) at [104] per Simpson J (Davies and Grove AJ agreeing); Betts at [2] per the Court, comprising French CJ, Kiefel, Bell, Gageler and Gordon JJ. This Court does, however, have the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice: Betts at [2] per the Court, comprising French CJ, Kiefel, Bell, Gageler and Gordon JJ.

44. In Khoury Simpson J (with whom Davies J and Grove AJ agreed) identified at [121] some of the relevant considerations in determining whether additional evidence should be admitted:

“That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court [to] examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton).”

See also ET v R [2024] NSWCCA 131 at [102] per Davies J (Mitchelmore and Kirk JJA agreeing); Stubbings v R [2023] NSWCCA 69 at [38] per Gleeson JA (Davies and Wilson JJ agreeing).

45. The evidence that should have been, but was not, presented in the sentence proceedings, is contained in the report of Dr Karen Scally dated 29 October 2024, which is annexed to the affidavit of Mr Stevens affirmed on 30 October 2024. The report sets out the applicant’s background, subjective circumstances, and mental health issues. The contents of the report are summarised as follows.

46. The applicant was raised by his mother and stepfather. His stepfather often drank and was violent towards his mother. Notwithstanding the domestic violence to which the applicant was exposed, he looked up to his stepfather. The applicant described his childhood before the age of 11 in positive terms. However, when he was 11 years old, the relationship between his mother and stepfather ended and his stepfather committed suicide.

47. When the applicant was 12 years old, his younger sister, who was a foster child, was kidnapped by her biological mother. When she was located, she was admitted to hospital in a coma after sustaining serious injuries relating to a physical assault while in her biological mother’s custody.

48. Shortly thereafter, the applicant’s mother developed a drug problem. The applicant and his siblings, who were foster children, lived with the applicant’s grandmother for a period. The applicant was the victim of bullying and beatings at the hands of his brother and children he associated with in the neighbourhood.

49. At school, the applicant was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and was prescribed medication. He took the medication for four years. He was expelled from school in Year 9 but later completed a High School Certificate and a diploma in art at TAFE. The applicant had some success as an artist but his achievements were thwarted by substance abuse.

50. He commenced consuming alcohol at the age of 12 or 13 years old. After leaving school he drank alcohol daily. The applicant subsequently became dependent on heroin and Xanax and had several overdoses from those drugs since 2010. He also smoked cannabis and occasionally consumed ecstasy pills. The applicant commenced using intravenous heroin and “ice” when he was 31 years old, in the aftermath of a significant relationship breakdown. The applicant’s previous attempts at drug rehabilitation have been unsuccessful.

51. The applicant reported that when he was eight to nine years old, he was the victim of “sexual molestation” at the hands of his soccer coach. The perpetrator later committed suicide. The applicant entered Juvenile Detention and while there, he was sexually assaulted on two occasions by different officers. When speaking with Dr Scally, it became apparent that the applicant found it difficult to talk about that history.

52. Dr Scally had been provided with a report prepared by Dr Trevor Lotz, Consultant Psychiatrist. That report was prepared in relation to the civil proceedings. Dr Lotz diagnosed the applicant with Post-Traumatic Stress Disorder (“PTSD”) and major depressive disorder in May 2024.

53. Dr Scally administered the MCMI-III test which consisted of 175 questions to measure personality disorders and clinical syndromes. The test also assisted with psychological/psychiatric diagnosis. The test results confirmed the diagnoses of major depressive disorder and PTSD. Dr Scally also diagnosed the applicant with opioid use disorder and personality disorder. The applicant had not been diagnosed with these disorders previously.

54. Dr Scally opined that much of the applicant’s offending has been associated with his drug addiction resulting in a “vicious cycle” whereby his substance use acts as both a “precipitating and perpetuating” factor in his offending. Dr Scally concluded that the applicant’s trauma symptoms are the major contributing factor to his substance use and offending.

55. The confidential affidavit of Julian Stevens affirmed on 19 November 2024, annexes the applicant’s evidentiary statement dated 18 October 2023 which sets out his history of sexual abuse.

56. The evidence is clearly of significance in sentencing the applicant for the offences to which he pleaded guilty. The applicant’s childhood disadvantage and deprivation are relevant in considering the application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The compelling subjective material had the capacity to impact on the sentence in several important ways including reducing the applicant’s moral culpability and moderating the weight afforded to general deterrence and denunciation. The material also had the capacity to impact, in a more positive way, upon the assessment of the applicant’s future prospects of rehabilitation.

57. The absence of the material during the sentence proceedings, deprived the sentencing judge of a full consideration of the applicant’s circumstances and resulted in a miscarriage of justice. The ground of appeal should therefore be upheld.

Resentence

58. There is no error on the part of the sentencing judge in the way that her Honour dealt with the sentence proceedings. Instead, the sentence proceedings miscarried because of the absence of relevant and compelling subjective material that had the capacity to impact upon the sentence in a way beneficial to the applicant.

59. The joint position of the parties on the appeal is that this Court should proceed to resentence the applicant rather than remitting the matter to the District Court. Because the non-parole period was to expire on 1 March 2025, it was appropriate for this Court to proceed to resentence the applicant itself.

60. No challenge has been made of the sentencing judge’s findings with respect to the objective seriousness of each offence. I adopt her Honour’s findings in that regard. I take into account that the applicant was subject to conditional liberty at the time he committed the offences, a matter of significant aggravation.

61. In addition to the limited subjective case that was before the sentencing judge, the applicant relies upon three affidavits on the usual basis. Those are the affidavit of Jason Shaw affirmed on 18 November 2024; the affidavit of Julian Stevens affirmed on 19 November 2024, and the affidavit of Karen Shaw affirmed on 14 November 2024.

62. The respondent relies upon the affidavit of Adam Wilczek affirmed on 29 November 2024 which annexes to it the report of Dr Lotz, dated 17 May 2024. That report was prepared for the purpose of the civil proceedings.

63. In resentencing the applicant, I have considered the following matters.

64. First, the applicant’s mental health conditions contributed, in a material way, to the offending. The applicant’s upbringing and traumatic events to which he was exposed, contributed to his mental health issues and drug addiction, which in turn played a role in the offending. The applicant’s childhood deprivation and disadvantage operate to reduce his moral culpability for the offending.

65. Second, although general deterrence remains a matter of significance in the resentencing task, the applicant’s history of trauma and related mental health issues moderate the weight to be afforded to general deterrence and denunciation.

66. Third, the applicant’s criminal history for similar offending and the fact that he was on conditional liberty at the time he committed the offences, is relevant to a consideration of specific deterrence and the protection of the community. In addition, the applicant’s previous attempts at drug rehabilitation have been unsuccessful. However, the material before this Court places a slightly different complexion on the applicant’s prospects of rehabilitation and risk of reoffending in the future. Although the applicant still poses a significant risk of relapse into drug use, his engagement in the civil claim will provide him with an opportunity to address his childhood abuse and deal with a significant trauma that has contributed to his mental health conditions and his substance abuse. It is only by addressing these underlying issues that there can be any hope that the applicant will not relapse.

67. In addition, the applicant has participated in the buprenorphine program in custody, which has encouraged him to envision a drug-free future for the first time. He has achieved a classification C3, which is an achievement he has not made before. The applicant has made progress in his studies at TAFE. The applicant’s mother describes several observations she has made of her son which reveal a significant positive change in his behaviour and attitude.

68. On a recent occasion when the applicant was on day release, he interacted with his daughters in a loving and responsible fashion. The applicant engaged meaningfully with his mother. Upon conveying the applicant back to Emu Plains Correctional Centre after his day release, she observed him to joke and “high-five” one of the prison officers. The applicant’s mother states that she had never previously seen her son have a positive interaction with a prison officer.

69. The material gives rise to a finding that the applicant has reasonable prospects of rehabilitation and is unlikely to reoffend if he continues to undertake drug relapse prevention treatment.

70. For all these reasons, a lesser sentence is warranted, giving rise to the orders made by the Court on 29 November 2024, namely:

1. Grant leave to appeal.

2. Uphold the appeal.

3. Quash the sentence imposed by the District Court on 22 January 2024.

4. In lieu of the sentence imposed in the District Court, impose an aggregate term of imprisonment of 2 years and 3 months, commencing 2 September 2023 and expiring 1 December 2025 with a non-parole period of one year and three months, expiring on 1 December 2024.

71. In resentencing the applicant, I set out the following indicative sentences, having applied a 25% discount to reflect the utilitarian value of the plea of guilty. For the offence of aggravated enter dwelling with intent to commit an indictable offence, an indicative sentence of 2 years imprisonment. For the offence of steal property from dwelling house, an indicative sentence of 1 year imprisonment. For each offence of larceny, and indicative sentence of 9 months imprisonment.

72. The aggregate sentence reflects a modest degree of accumulation to reflect the discrete nature of the offending, notwithstanding that the offending was proximate in time and location.

73. The sentence also reflects a finding of special circumstances having regard to the applicant’s need for treatment and supervision in the community in respect of his mental health conditions and his substance abuse.

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