Smith v The King

[2024] NSWCCA 59

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Smith v R [2024] NSWCCA 59

Hearing dates:

8 April 2024

Date of orders:

1 May 2024

Decision date:

01 May 2024

Before:

Adamson JA at [1];
Basten AJA at [12];
Wilson J at [67]

Decision:

(1)   Grant the applicant leave to appeal from the aggregate sentence imposed on 24 March 2023 in the District Court at Lismore.

(2)   Allow the appeal and set aside the sentence.

(3)   Resentence the applicant to imprisonment for 4 years, comprising,

(a)   a non-parole period of 2 years and 9 months to date from 23 February 2022, expiring on 22 November 2024, and

(b)   a balance of term of 15 months, expiring on 22 February 2026.

(4)   The applicant is first eligible for release on parole 22 November 2024.

Catchwords:

CRIME – sentence – appeal against sentence – denial of procedural fairness –– aggravated break and enter and larceny in company – unchallenged evidence of psychiatrist of causal link between psychiatric disorders and cognitive impairment and offending – evidence admitted without objection – psychiatrist not cross-examined – failure to give offender an opportunity to address on dismissal of evidence – relevance to offender’s moral culpability – relevance to general deterrence

Legislation Cited:

Crimes Act 1900 (NSW), s 112(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)

Evidence Act 1995 (NSW), s 191

Migration Act 1958 (Cth), s 424A(1)

Cases Cited:

Button v R [2010] NSWCCA 264

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074

Dang v R [2014] NSWCCA 47

Goodridge v R [2014] NSWCCA 37

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22

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

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51

Weir v R [2011] NSWCCA 123

Category:

Principal judgment

Parties:

Dylan Smith (Applicant)
Rex (Respondent)

Representation:

Counsel:
C O’Neill (Applicant)
V Garrity (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2022/54112

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 March 2023

Before:

English DCJ

File Number(s):

2022/54112

HEADNOTE

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

The applicant, Dylan Smith, sought leave to appeal from the sentence imposed on him in respect of two counts of aggravated break and enter and commit a serious indictable offence (larceny in company) contrary to s 112(2) of the Crimes Act 1900 (NSW). The applicant was sentenced to imprisonment for four years and six months, with a non-parole period of two years and nine months. The sentence commenced on 23 February 2022.

The applicant underwent a pre-sentence psychiatric assessment conducted by Dr Gerald Chew. Dr Chew concluded, inter alia, that the applicant’s mental and cognitive impairments had a causal link to his offending. Dr Chew’s report was tendered on sentence without objection from the prosecutor and Dr Chew was not called for cross-examination. The sentencing judge rejected Dr Chew’s findings as to the causal link and did not accept that the offender’s moral culpability was reduced, nor that reduced weight should be given to general deterrence.

The one ground of appeal alleged a denial of procedural fairness. The applicant submitted that the sentencing judge erred when she rejected unchallenged evidence tendered by the applicant in the court below without giving him a chance to support that evidence.

The Court (Adamson JA, Basten AJA and Wilson J) granting leave to appeal and upholding the appeal, held:

1. As there was no dispute as to Dr Chew’s opinions, the sentencing judge was bound to advise the parties if she proposed not to accept that evidence: at [3], [4] (Adamson JA); [48], [49] (Basten AJA); [67] (Wilson J).

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282; Button v R [2010] NSWCCA 264; Weir v R [2011] NSWCCA 123; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 applied.

Goodridge v R [2014] NSWCCA 37 distinguished.

1. A judge is not required to accept matters which are presented as common ground between the parties. In a busy trial court, where the judge does not have time to absorb the evidence and written submissions prior to the hearing, it is possible that what appeared to the parties to be common ground may not be accepted by the judge. Where that occurs after the hearing in relation to a matter the judge accepts as material, it will be necessary to give the parties notice and an opportunity to apply to reopen or provide further evidence or submissions: at [2]-[4] (Adamson JA); [41] (Basten AJA); [68]-[69] (Wilson J).

2. The psychiatric evidence was relevant and material to an assessment of the applicant’s moral culpability and the weight to be given to general deterrence. The applicant was denied procedural fairness by not having the chance to address on the non-acceptance of that evidence: at [5] (Adamson JA); [49] (Basten AJA); [67] (Wilson J).

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 applied.

1. Accepting the evidence of Dr Chew, the applicant’s moral culpability is reduced, and the weight given to general deterrence must be reduced. However, this must be balanced by the need to denounce his serious criminal conduct: at [1] (Adamson JA); [60] (Basten AJA); [67] (Wilson J).

JUDGMENT

1. ADAMSON JA: I agree with the orders proposed by Basten AJA and with his Honour’s reasons but wish to add the following.

2. The proceedings on sentence were conducted as efficiently as time permitted, in that both parties provided written submissions to the sentencing judge, which shortened the hearing time. It would also appear that the sentencing judge had not had time to read the material before the sentencing hearing and proposed to do so later, after her Honour had reserved her decision. These circumstances may be taken to be the inevitable result of the demands placed on District Court judges, particularly those sitting in rural locations where it is desirable to complete the matters in the list while the judge remains at that location. None of these circumstances in itself gives rise to any procedural unfairness.

3. In the present case, it was the rejection by the sentencing judge, without notice to the parties, of what the parties had, in effect, indicated was, if not common ground, at least undisputed that created procedural unfairness. The applicant’s representatives were entitled to assume that, the Crown having effectively conceded causation, it was not necessary either to request that Dr Chew give a supplementary report in which his opinion that the applicant’s mental condition caused or contributed to the offending conduct be expressed in more robust or expansive terms or to call Dr Chew to give oral evidence to that effect. The sentencing judge was not bound to accept Dr Chew’s view but, given the Crown’s acceptance of the causal connection, her Honour was required, as a matter of procedural fairness, to alert the applicant of the possibility that, because of the way in which the opinion was expressed, she might not accept Dr Chew’s opinion as to causation.

4. If the sentencing judge did not appreciate that she might be inclined to reject Dr Chew’s opinion of causal connection until after she had reserved her decision and adjourned the Court, her Honour ought to have notified the parties of it (by email through her associate) and given them an opportunity to provide a further report from Dr Chew or to apply to re-list the matter so that Dr Chew could be called to give oral evidence. It would also have been open to the parties to agree that the applicant’s mental condition contributed to the offending conduct and include that agreed fact in a statement, signed by the parties and tendered pursuant to s 191 of the Evidence Act 1995 (NSW).

5. However, in the present case, the sentencing judge, by not alerting the applicant to the possibility that, notwithstanding the Crown’s concession, she would not accept Dr Chew’s opinion, denied the applicant the opportunity of persuading her Honour (including by adducing further evidence) that Dr Chew’s opinion ought be accepted.

6. Examples where this Court has found procedural unfairness in similar or analogous circumstances to the present include the following. In Weir v R [2011] NSWCCA 123 (Weir), following the sentencing judge’s indication that it was “highly likely” that a sentence of the order foreshadowed would be imposed, the offender’s representative did not make any further submissions on sentence. The sentencing judge imposed a sentence that was significantly longer, which this Court set aside on the grounds of procedural unfairness: [64]-[67]. In Button v R [2010] NSWCCA 264 (Button), the sentencing judge in the course of the hearing said that, given that the applicant was a first-time offender who had strong prospects of rehabilitation, “release after one year in jail and perhaps 18 months or two years on parole” would be appropriate. The judge later imposed a significantly longer sentence. This Court found that there had been a denial of procedural fairness: [14]-[18].

7. The Crown conceded procedural unfairness in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 (Lehn) where the sentencing judge rejected, without forewarning, a Crown concession that a discount of 25% for the plea of guilty was appropriate (at a time when the quantification of the discount was discretionary).

8. By contrast, procedural unfairness was not established in Dang v R [2014] NSWCCA 47 (Dang) on the basis that there was no practical injustice. In that case, after the parties had addressed the sentencing judge on all relevant issues, her Honour expressed a preliminary view that it would be appropriate to add two more years to the time in custody. When imposing the sentence, her Honour fixed a non-parole period in excess of that indication. This Court distinguished Weir and Button at [46]-[47].

9. Nor was procedural unfairness established in Goodridge v R [2014] NSWCCA 37 (Goodridge) at [132]-[138] (Hoeben CJ at CL) where the trial judge in a special hearing rejected the unanimous views of psychiatrists that at the time of the acts causing death, the accused’s capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition. The trial judge rejected the psychiatrists’ opinions and found that there was no substantial impairment. The basis of her Honour’s decision was the accused’s police interview which had taken place shortly after the offending conduct, which the psychiatrists had not viewed in coming to their opinions. This Court held that there had been no denial of procedural fairness because the trial judge had identified, in the course of the hearing, her reservations about the joint opinions (and the reasons for the reservations), thereby alerting the parties to the possibility that the joint opinions might not be accepted and the potential need for them to decide what course to take (including seeking an adjournment so that the psychiatrists could view the police interview and revise or confirm their opinions, if need be).

10. The difference between Goodridge on the one hand and Button, Weir and Lehn on the other is in that in Goodridge, the trial judge had alerted the parties to the possibility that her Honour would not accept the joint position of the parties, thereby giving them an opportunity to address that matter forensically. However, in Button, Weir and Lehn, as in the present case, the judge failed to alert the parties to the possibility that she would not accept the joint position (in this case, the Crown’s concession of causal connection, based on Dr Chew’s evidence) and thereby deprived the applicant of the opportunity of addressing that possibility. In Dang, the parties had said all that they wanted to say on the relevant topics and, thus, the sentencing judge’s expression of a preliminary view had no consequence and therefore did not cause any practical injustice. For completeness, I note that had the Crown in the present case contested Dr Chew’s evidence of a connection instead of conceding it, the applicant would have been on notice that he might need to call Dr Chew or obtain an opinion in better form and there would have been no denial of procedural fairness.

Conclusion

11. For the reasons given above, there was a denial of procedural fairness, which requires that the sentence imposed by the sentencing judge be set aside and the applicant re-sentenced. I agree with the re-sentence proposed by Basten AJA.

12. BASTEN AJA: The applicant, Dylan Smith, was sentenced on 24 March 2023 in the District Court at Lismore on two counts of aggravated break and enter and commit a serious indictable offence, namely larceny in company. Pursuant to s 112(2) of the Crimes Act 1900 (NSW), such offences carry a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The sentencing judge (English DCJ) imposed an aggregate sentence of four years and six months with a non-parole period of two years and nine months. The sentence was fixed to commence on the day on which the applicant was taken into custody for the offences, namely 23 February 2022. The non-parole period will expire on 22 November 2024 and the head sentence on 22 August 2026.

13. The sole ground under the proposed appeal is that the sentencing was procedurally unfair because the sentencing judge rejected the unchallenged evidence of Dr Gerald Chew, consultant psychiatrist, to the effect that there was a causal connection between the applicant’s psychiatric disorders and cognitive impairment and the offending. Dr Chew’s report had been admitted without objection and he was not required for cross-examination.

14. If Dr Chew’s opinion had been accepted, the level of moral culpability for the offending would have been reduced, as would the significance of the sentencing policy of general deterrence.

15. If acceptance of Dr Chew’s opinions could have resulted in a lower sentence, and the failure to give the applicant an opportunity to support Dr Chew’s opinions was procedurally unfair, the result must be to invalidate the sentence. The fact that, in exercising its function of resentencing, this Court might impose the same sentence, does not demonstrate that there was no procedural unfairness.

16. An arguable case that there has been a failure to accord procedural fairness is sufficient to warrant a grant of leave to appeal. That standard is met in the present case. Further, for the reasons set out below, the ground should be upheld and the sentence set aside. In some circumstances, and in particular where the sentencing judge has heard oral evidence, it may be necessary to remit the matter to the District Court, on the basis that there has been no valid exercise of the sentencing function. However, that is not this case: there was no oral testimony taken on the sentencing hearing. Neither party submitted that this Court was not as well placed as the District Court to exercise the resentencing function. Accordingly, that task has been undertaken. There will be a variation of the sentence imposed, though there is limited scope to reduce the invalid sentence.

Factual and procedural background

17. The sentence related to two offences committed at the same premises, namely a hire car facility at Tweed Heads in northern New South Wales. The first offence occurred in the early hours of 10 February 2022 when the applicant and two associates broke into the office of the business by opening a locked window with a screwdriver. He then broke through a doorway which allowed access to the keys for the vehicles in the yard. Having gained access to the inside office, the applicant and his co-accused stole a number of car keys and a safe. An iPad was also removed.

18. Three cars were removed from the premises, although the first was used to ram a gate and force it open; that vehicle was left on the roadway. Two other vehicles were removed, but it was not alleged that the applicant was the driver of either vehicle.

19. The second offence occurred at about 04:45 on the morning of Monday, 14 February 2022, that is four days after the first offence. The premises had been repaired following the earlier break-in and security improved. Nevertheless, the applicant and two male associates cut the chain to the padlocked front gate of the car hire premises and a second gate leading to the rear yard. After forcing an internal door, the offenders were again able to obtain access to the room where the keys to the vehicles were stored and wheeled the board containing the keys outside. Five vehicles were then removed from the car yard, with a sixth vehicle removed but abandoned a short distance from the premises. The applicant was identified from CCTV footage, and by fingerprints and DNA. On 23 February 2022, he was arrested.

20. The circumstances of the offending were set out in a statement of agreed facts prepared by the Office of the Director of Public Prosecutions.

21. The material admitted in the prosecution case on sentence included two sentencing assessment reports, prepared by Community Corrections officers. The first, dated 5 December 2022, resulted from an interview with the applicant who had been refused bail and held at Mid-North Coast Correctional Centre prior to his sentencing. Under the heading “Factors related to offending” the following appeared:

“History of anti-social behaviour

●   Mr Smith has an extensive criminal history in both New South Wales and Queensland.

●   His historical offences pertain to property offences, drug offences and assaults.

●   This criminal history appears to be in the context of Mr Smith’s illicit substance use, antisocial associates, and his inability to regulate his emotions.

●   It would appear that the index offences are a continuation of his historical anti-social behaviour.

Attitudes

●   …

●   Mr Smith was able to link his offending behaviour with his ongoing illicit substance use and lack of stability.

Substance use

●   Mr Smith has a significant history of polysubstance use including intravenous methylamphetamine and heroin.

●   He disclosed that he was under the influence of the aforementioned substances and alcohol at the time of his index offence, indicating he would use every day.”   

22. The second report, dated 14 March 2023, merely updated the earlier report, but contained the following additional information:

“●   Mr Smith has been receiving treatment for his substance abuse by means of the monthly Buprenorphine injection since August 2022, with Justice Health confirming he is compliant with his dosing schedule.

●   Whilst he is currently receiving the above treatment, Mr Smith claimed his dosage only provides him stability for approximately two weeks and by his own admissions he has continued to use illicit substances in custody thereafter.”

23. On 24 January 2023, at the request of the applicant’s solicitor, Dr Chew conducted a psychiatric assessment of Mr Smith by AVL. Dr Chew’s report included a summary of hospital records from the Gold Coast University Hospital regarding an admission in late 2021 after he had fired a flare gun in his mouth. In addition to noting the physical injuries, Dr Chew’s summary recorded:

“iii.   He was positive for amphetamines, benzodiazepines, cocaine and buprenorphine. Drugs were found in his rectum.

iv.   Notes abuse of illicit suboxone in jail. Notes treatment with methadone 40mg daily.

v.   Notes long term treatment with mirtazapine (antidepressant).”

24. Dr Chew then recorded the following history given by the applicant:

“8   Mr Smith reported that he is a 26 year old Aboriginal man who had been in custody for approximately 11 months.

9   He said that he was coping ok in jail and had been substance free and on treatment. He is currently being treated with Buvidal long acting injection 96mg every 4 weeks for opioid dependence and mirtazapine an antidepressant.

10   He was very remorseful about his actions and future focused. He wanted to keep his mental health stable, and stay off illicit drugs.

11   He reported that the period leading up to the offending behaviour had been difficult. He had been using copious amounts of drugs culminating in him shooting himself in the mouth with a flare gun in late 2021. He was admitted to hospital for this and discharged to a residential rehabilitation. He was kicked out from there after about a month because he was using opioids against policy. He was then homeless and relapsed on drugs and disengaged from services.”

25. Under the heading “Substance use history”, Dr Chew recorded:

“19   Mr Smith admitted to significant substance use problem.

20   He said that he had used heroin for 10 years as his drug of choice.

21   He also admitted to copious other poly drug use including methamphetamine, cocaine, benzodiazepines and cannabis.”

26. After recording the findings of his mental status examination, Dr Chew concluded:

“32   In my opinion Mr Smith’s primary diagnosis is complex Post Traumatic Stress Disorder in the context of significant trauma. This is complicated by Substance Use Disorder. He uses substances to manage his emotional difficulties which in turn exacerbates his difficulties. He also has a history of poor learning and cognitive difficulties.

33   Currently his mental state is stable on treatment and off illicit drugs.

34   I think that there is a link between his diagnoses and the offending behaviour. He unfortunately had relapsed into substance use which in turn affected his judgment making him more likely to make poor decisions. This is on the background of poor cognitive abilities.

35   In my opinion his conditions constitute a mental health impairment and a cognitive impairment ….

36   Treatment of his condition will improve his prognosis. Incarceration is likely negative for him as it can worsen illness and treatment is less comprehensively available. Illicit substances remain available in custody.”

27. In a careful judgment, to which only one objection is taken, the sentencing judge referred to Dr Chew’s report. Indeed, it appears that significant aspects of the applicant’s personal history were taken from Dr Chew’s report. In considering the objective gravity of the offending, under the subheading “Serious factors of aggravation”, the judge stated: ^[1]

“These offences were committed for financial gain to fund his drug habit. These offences cannot be said to have been impulsive in the sense they were committed on the spur of the moment. There was obviously a degree of planning …. I am not persuaded that the offences were committed as a result of some cognitive impairment on the part of the offender. There is no evidence to suggest that he did not know what he was doing was wrong.

Dr Chew, in a report tendered on behalf of the offender, refers to the offender as being ‘remorseful about his actions’, a clear indication that the offender was aware of the wrongfulness of actions.”

1. Sentencing judgment, p 6-7.

28. The judge identified the objective gravity for each offence as “below the mid-range but certainly not markedly so, certainly not at the lower end of the range”. She then proceeded to consider the personal circumstances of the applicant, noting that he did not give evidence. ^[2]

    2. Sentencing judgment, p 8.

29. After referring to his criminal record, the judge proceeded to consider Dr Chew’s opinions and the two sentence assessment reports. The judge immediately turned to an apparent inconsistency, stating: ^[3]

“There is significant conflict in an important respect between Dr Chew’s report and the second sentence assessment report. Dr Chew reports that the offender has been ‘substance free’ whilst being treated with Buvidal in custody. However, the sentence assessment report records the offender as stating that his dosage only provides him with stability for approximately two weeks. By his own admission, he has continued to use illicit substances in custody. Such a significant difference impacts upon the weight to be given to the opinion of Dr Chew.”

3. Sentencing judgment, p 9.

30. Three observations should be made in respect of that passage. First, as noted above, the reference to the applicant being “substance free” was contained in the section setting out the history reported by the applicant to Dr Chew. Secondly, Dr Chew, in expressing his own opinion, had noted that “illicit substances remain available in custody”. There must be some uncertainty as to whether Dr Chew would have changed any aspect of his opinions if informed about the admission set out in the second sentence assessment report.

31. Thirdly, it is clear that the admission made to the Community Corrections officer significantly affected the weight she gave to Dr Chew’s report, though in which specific respect was not then identified. In a second passage, the judge referred to Dr Chew’s opinion that there was “a link between his diagnosis and the offending behaviour” and that his condition constituted “a mental health impairment and a cognitive impairment”. ^[4] The judge continued:

“It is not clear, with respect, just how Dr Chew arrives at that opinion. There is no neuropsychological testing or other material, on my reading of his report, which would support such a conclusion. I give it very little weight.”

4. Sentencing judgment, pp 10-11.

32. The third, conclusory, statement by the sentencing judge, was in the following terms: ^[5]

“For the reasons I have alluded to above, I am not persuaded that his moral culpability should be reduced by reason of the findings of Dr Chew. As I have stated, Dr Chew ‘thinks’ that there is a causal link, he does not say so definitively and nor does his report express an opinion that the cognitive impairment he referred to has impacted upon the ability of this offender to know right from wrong.”

5. Sentencing judgment, p 11.

33. The judge concluded that “[t]his offender is not … an inappropriate medium for general deterrence”. ^[6]

    6. Sentencing judgment, p 12.

Principles relating to procedural unfairness

34. The thrust of the Director’s submissions in response to the ground of appeal was that the applicant’s legal representative, “who had signposted from the outset that the sentence matter was to be proceed ‘largely on the papers’, was afforded procedural fairness during the sentencing proceedings, by the making of oral submissions, in addition to the written submissions that were relied upon”. ^[7]

    7. Respondent written submissions, 3 April 2024, par 57.

35. Counsel concluded that it was “not open to the applicant now, to contend in this Court, that there had been a denial of procedural fairness, when the sentence proceedings were conducted in the very way that the applicant (through his legal representative) had sought that they be conducted”. ^[8]

    8. Respondent’s written submissions, par 58.

36. The Director also observed that, “it was open to her Honour, in her assessment of all of the evidence placed before the Court, to ultimately not accept the opinion of Dr Chew that there was a causal link between the diagnoses and the offending”. ^[9]

    9. Written submissions, par 53.

37. Each of these statements may be accepted, so far as it goes; however, none engaged with the applicant’s complaint. The relevant aspect of procedural fairness was explained by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd ^[10] and approved on a number of occasions by the High Court:

“[The] entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. 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. Subject to these qualifications, however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

10. (1994) 49 FCR 576 at 592; [1994] FCA 1074.

38. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah,^[11] McHugh J noted that an applicant (in that case a visa applicant) may be required to be given an opportunity to comment on material which is “equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it”. ^[12] Albeit in dissent in Miah, Gleeson CJ and Hayne J observed:^[13]

“The nature, and extent, of communication between applicant and decision-maker that is in contemplation, in such a general context, will vary. At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent. Even in such a case, fairness does not require a judicial officer to make a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure.”

11. (2001) 206 CLR 57; [2001] HCA 22.

12. Miah at [141].

13. Miah at [31].

39. However, as recognised in Miah and Alphaone, there are circumstances in which such a disclosure should be made. In dealing with proceedings before the Refugee Review Tribunal, the High Court has considered what may be covered by a statutory obligation to give an applicant “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. ^[14] After noting that the term “information” does not extend to “the existence of doubts, inconsistencies or the absence of evidence”, the joint reasons of French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR ^[15] noted that such a provision does not require the decision-maker “to expose his or her thought processes or provisional views for comment before making the decision”. The joint reasons continued:

“That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions, or weaknesses in his or her case which have been identified by the Tribunal.”

14. Migration Act 1958 (Cth), s 424A(1)(a).

15. (2011) 241 CLR 594; [2011] HCA 1 at [9] (Heydon J and Crennan J agreeing).

40. As observed by Gleeson CJ and Hayne J in Miah, the principle of procedural fairness is likely to apply in relation to a court without the qualifications which may arise from the context in which a particular statutory tribunal operates. Further, as the Court of Appeal observed in Parker v Director of Public Prosecutions,^[16] a District Court judge hearing an appeal from the Local Court by an appellant who has been sentenced to a non-custodial penalty must disclose to the applicant a proposal to impose a greater (in that case custodial) sentence, before delivering judgment. The failure to do so constituted a denial of procedural fairness.

    16. (1992) 28 NSWLR 282.

41. That is not to say that a judge may not reject evidence, or even a submission, without giving advance warning to the party adversely affected. It is to say, however, that there will at least be a risk of procedural unfairness if that step is taken in relation to evidence or submissions which constitute common ground between the parties who have, based on that common understanding, not addressed that aspect of the case.

42. To submit that it was “open” to the sentencing judge to reject Dr Chew’s views, does not demonstrate that there was no procedural unfairness. The limit to the principle that procedural unfairness invalidates a judgment was expressed in Stead v State Government Insurance Commission ^[17] in terms that “a properly conducted trial could not possibly have produced a different result”. In Re Refugee Review Tribunal; Ex parte Aala ^[18] Gaudron and Gummow JJ rejected the proposition that “trivial” breaches of the requirements of procedural fairness would not invalidate a decision.

    17. (1986) 161 CLR 141 at 147; [1986] HCA 54.

    18. (2000) 204 CLR 82; [2000] HCA 57 at [59].

43. Shortly after Aala, Gleeson CJ explained in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam ^[19] that the purpose was to avoid “practical injustice”. That principle has now emerged as a requirement of “materiality”; ^[20] in Hossain v Minister for Immigration and Border Protection ^[21] the joint reasons of the majority stated:

“Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.”

19. (2003) 214 CLR 1; [2003] HCA 6 at [37].

20. Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [58] (Gageler and Gordon JJ); Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [23] (Gageler and Keane JJ).

21. (2018) 264 CLR 123; [2018] HCA 34 at [31] (Kiefel CJ, Gageler and Keane JJ).

44. Accordingly, it is not to the point that a different decision may have been “open”; once it is found that the breach was “material”, that is, it was a factor affecting the outcome, it cannot be disregarded unless the conclusion reached by the judge was inevitable.

Application of principles

45. Although the sentencing judge had not read Dr Chew’s report before the sentencing hearing, the report had been filed in court and had been served on the prosecutor. At the sentencing hearing, the prosecutor had provided the tender bundle and the two sentencing assessment reports. The solicitor for the applicant then handed up an outline of submissions and Dr Chew’s report. When the judge said, “I haven’t seen them”, ^[22] the solicitor said that he had sent them “about two weeks ago”. The solicitor then made oral submissions dealing with adverse comments in the sentencing assessment reports. He did not address orally Dr Chew’s opinions, but they had been summarised and discussed at some length in the written submissions. That document, under the heading “Mental Health”, specifically identified Dr Chew’s opinion that “there is a causal connection between the diagnoses and the offending”. The prosecutor’s written submissions contained the following statement:

“27   The Crown notes that significant subjective material has been filed by the offender. At this time, the Crown does not seek to be heard on that material.”

22. Tcpt, 17/03/23, p 3(24).

46. Given that there was no other material which could be so characterised, that statement must have referred to Dr Chew’s report.

47. After the applicant’s legal representative had addressed, the sentencing judge called upon the prosecutor and the following exchange took place: ^[23]

“Westendorf:   Does your Honour wish me to take you through the Crown written submissions?

Her Honour:   No.

Westendorf:   I don’t wish to put anything further.”

23. Tcpt, p 5(44)-(50).

48. In circumstances where there had been no objection to the tender of Dr Chew’s report, and the prosecutor had not sought to cross-examine Dr Chew, but had indicated on two occasions that he did not wish to be heard with respect to the subjective material favouring the applicant, it should be inferred that there was no dispute as to Dr Chew’s opinions and, in particular, the opinion as to the causal link between his psychiatric and cognitive impairments and the offending.

49. In those circumstances, if the sentencing judge were proposing to take a different view, she was bound to advise the parties of that possibility. It was by no means clear that Dr Chew would have accepted that his opinion would have been different had he known of the applicant’s continued use of drugs whilst in custody. Indeed, the judge did not explain why she thought that fact cast doubt on the psychiatrist’s conclusions. The applicant should have had an opportunity to allow that matter to be put to Dr Chew, and to address the judge as to why she should not adopt the view she did.

50. The judge’s reasons demonstrate that the supposed absence of a causal link affected her conclusion as to the moral culpability of the applicant and the weight to be given to general deterrence, and therefore the sentence imposed. Accordingly, the appeal should be upheld and the sentence imposed in the District Court set aside. It is then necessary for the Court to resentence the applicant.

Resentencing

51. There are five matters which undoubtedly informed the selection of the aggregate sentence and were favourable to the applicant. First, the finding of objective seriousness as below the middle range was significant.

52. Secondly, although the period between the applicant’s arrest on 23 February 2022 and the imposition of the sentence on 24 March 2023 was a little more than 12 months, the first five months were also attributable to the revocation of his parole for earlier offending. Nevertheless, the judge backdated the sentence to 23 February 2022.

53. Thirdly, although the two offences were separate events, having identified that individual sentences for each would have been three years and six months with a non-parole period of two years, the aggregate sentence was four years and six months with a non-parole period of two years and nine months, indicating a significant level of concurrency.

54. Fourthly, the judge made a finding of special circumstances permitting a non-parole period which was only 61% of the head sentence. A longer period of supervision on parole was intended to enhance the applicant’s prospects of rehabilitation and reduce the risk of relapse and reoffending, a risk which the judge had assessed as “high”. ^[24]

    24. Sentencing judgment, pp 11 and 13.

55. Fifthly, the prosecutor had submitted at the sentencing hearing that the applicant’s prior convictions could constitute an aggravating circumstance pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The judge did not accept that submission, preferring to treat his record as merely a basis for withholding leniency. ^[25]

    25. Sentencing judgment, p 11.

56. There were other considerations warranting leniency, including his poor education, his diagnosis of ADHD and learning difficulties; that he had been the victim of sexual abuse when in juvenile detention at Reiby Juvenile Correction Centre and whilst in custody in Queensland; that he had symptoms of anxiety and post-traumatic stress disorder as a result of witnessing the death of a friend by shooting and having driven him to hospital; and, having spent the majority of his life since adolescence in custody, he was said to be “institutionalised”. ^[26]

    26. Sentencing judgment, p 10.

51. The motive for the offending was said to be financial, namely that he and the co-offenders wished to steal cars, presumably to sell them, so as to obtain the funds to buy drugs. However, he was not being sentenced for the theft of the motor vehicles, although that was accepted as the purpose, and indeed the consequence, of the offending for which he was charged. Furthermore, these were not the only two occasions on which he had broken into the hire car business premises. There had been an earlier offence in 2016, when he had been charged with an almost identical offence under s 112(2) of the Crimes Act, together with eight consequential offences of malicious damage to property, and taking and driving a vehicle, never having been licenced. The agreed facts demonstrated the degree of similarity and were part of the prosecution materials tendered on sentence. For that offending, he had been sentenced to imprisonment for two years and three months with a non-parole period of one year and two months.

52. It is apparent that the earlier sentence was ineffective in terms of personal deterrence. The judge assessed the applicant as a “high risk of reoffending”, ^[27] based, presumably, on his inability to wean himself off drugs. There was no evidence before this Court to suggest that that assessment was wrong, or that there was any further step which this Court could take to promote a more favourable outcome, beyond maintaining the option of a significant period on parole, which, if granted, will no doubt contain conditions intended to assist in helping him to cope with his drug use.

    27. Sentencing judgment, p 11.

53. The sentencing judge was undoubtedly correct to impose a significantly longer sentence than that imposed in 2016. In 2016 he was 20 years of age; he is now 27 years of age. Whether a longer sentence will be effective as a form of specific deterrence may be doubted; however, the applicant should know that each sentence for further offending is likely to be relatively greater than the last.

54. Accepting Dr Chew’s opinion, as the Director did in this Court, the applicant’s mental health and cognitive impairments reduce his moral culpability, and reduce the weight to be given to general deterrence. Nevertheless, the Court must be mindful of the need to denounce the serious criminal conduct.

55. An affidavit of the applicant tendered on the appeal demonstrated a level of insight into his drug addiction, without unrealistic promises as to his future.

56. While the applicant continues in employment, his conduct during his sentence may well hold promise of improvement. However, based on past conduct, there is no demonstration that a longer period of conditional release will assist rehabilitation.

57. The seriousness of the offending and its repetitive quality does not permit the individual sentences identified by the sentencing judge as including non-parole periods of two years to be reduced. However, I would reduce the head sentence in respect of each offence from three years and six months to three years.

58. Because the original sentence was backdated to the date of arrest, so as to render the whole of the period served on revocation of parole to be concurrent with the present sentence, there should be no change in the effective non-parole period of two years and nine months.

59. I propose an aggregate sentence of four years imprisonment commencing 23 February 2022 and expiring on 22 February 2026, with a non-parole period expiring on 22 November 2024, which will be the first date on which he is eligible for release on parole in accordance with this sentence.

60. The orders should be:

1. Grant the applicant leave to appeal from the aggregate sentence imposed on 24 March 2023 in the District Court at Lismore.

2. Allow the appeal and set aside the sentence.

3. Resentence the applicant to imprisonment for 4 years, comprising,

1. a non-parole period of 2 years and 9 months to date from 23 February 2022, expiring on 22 November 2024, and

2. a balance of term of 15 months, expiring on 22 February 2026.

4. The applicant is first eligible for release on parole 22 November 2024.

67. WILSON J: I have had the opportunity of reading in draft the judgment of Basten AJA and that of Adamson JA and agree with their Honours.

68. Entirely inadvertently, in the context of a matter heard in a busy regional list court, there was a denial of procedural fairness in that the applicant did not have an opportunity to respond to the concerns held by the sentencing judge regarding the evidence of Dr Chew.  The error was largely occasioned by the circumstances that applied to the hearing of this matter, with evidence and submissions received by the sentencing judge before the sentence was stood over for judgment. At the time of adjourning the proceedings, her Honour had not had any real opportunity to read the material, and she was not in a position to raise any concern about the evidence with the parties.

69. That is a situation that occurs with some frequency in busy list courts where judges presiding do not have the luxury of time for reading and reflection during court hours. It will frequently be the case that a sentencing judge sitting in such a court will not be aware of any issue that may properly arise with the evidence until some later time. As Adamson JA has observed, that gives rise to the question of how to resolve the issue and, particularly, how to do so without occasioning undesirable delay that may have consequential effects on the management of the sentencing court’s lists. Adamson JA has suggested some practical measures that can be adopted to address the situation. Another may be for a court dealing with matters in these circumstances to make a practice of reminding the parties that the court is not bound by and may not accept any concession made by either, and each should place all evidence to be relied upon before the court and make any necessary submission, notwithstanding the concession. These practical solutions might obviate the need for applications such as the present.

70. I agree with the orders proposed by Basten AJA.

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Endnotes

Decision last updated: 01 May 2024