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Court of Criminal Appeal 11 December 2019

Rae v R

[2019] NSWCCA 284

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIME APPEAL APPEAL AGAINST SENTENCE PAROLE PERIOD OF 3 YEARS APPEAL ALLOWED

Citation: Rae v R [2019] NSWCCA 284
Court: Court of Criminal Appeal, NSW
Date: 11 December 2019
Judges: Macfarlan JA, Harrison J, Cavanagh J

Background

The appellant pleaded guilty to being an accessory after the fact to an aggravated break, enter and steal offence under s 112(2) of the Crimes Act 1900 (NSW). The offence involved the theft of 39 firearms from a storage facility in Newcastle. The appellant had assisted by leasing a storage unit under a false name on the day of the theft, providing his brother and others with PIN-code access to the facility.

On 17 August 2018, Ellis DCJ in the District Court at Newcastle sentenced the appellant to 4 years and 6 months imprisonment with a non-parole period of 3 years. At the time of sentencing, the appellant was already serving a pre-existing Local Court aggregate sentence for unrelated offences.

The appellant sought leave to appeal on a single ground: that a miscarriage of justice arose because his legal representatives failed to place before the sentencing judge evidence of his history of diagnosed mental illness, despite him having drawn that history to their attention. No pre-sentence report, psychiatric report, or medical records were tendered at the original hearing.

  • Whether a miscarriage of justice arose from the failure of the appellant's legal representatives to obtain and tender evidence of his mental health history at sentencing.
  • Whether fresh psychiatric and medical evidence, which did not meet the strict "fresh evidence" test in Goodwin v R, could nonetheless be received by the Court of Criminal Appeal to remedy the injustice.
  • Whether, if the appeal were allowed, the Court of Criminal Appeal should re-sentence the appellant itself or remit the matter to the District Court for a fresh sentencing hearing.

Decision

The Court of Criminal Appeal found that a miscarriage of justice had occurred. Although the sentencing judge had not committed any identifiable error, the absence of relevant mental health evidence meant the sentencing proceedings were fundamentally incomplete. The appellant had a documented psychiatric history, including diagnoses of borderline personality disorder and chronic depression and anxiety, a family background marked by parental mental illness and suicide, and a serious drug dependency. None of this material was placed before the court in evidentiary form.

The Court drew on the principle articulated in R v Abbott (1985) 17 A Crim R 355, which permits reception of evidence on appeal where incompetent representation has left a sentencing tribunal to impose sentence without evidence of a fundamental fact. The psychiatric report from Dr Matthew Hocking and a Hunter Mental Health Service Encounter Summary were received as additional evidence under this basis, notwithstanding that they did not qualify as "fresh evidence" in the strict sense.

On the question of remedy, the Court considered whether to re-sentence the appellant or to remit the matter. Harrison J noted that no error had been identified in the sentencing judge's approach and that both the appellant and the Crown should have the opportunity to place and respond to the relevant material before the original sentencing court. The Court followed the approach taken in Pym v R [2014] NSWCCA 182, where remittal was found to be the appropriate course in analogous circumstances.

The appeal was allowed, the sentence quashed, and the matter remitted to Ellis DCJ (or another District Court judge if his Honour was unavailable) for a fresh sentencing hearing.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Ellis DCJ on 17 August 2018 quashed.
  • Matter remitted to Ellis DCJ for sentence, or to another judge of the District Court if his Honour is unavailable.
  • Matter directed to be placed in the District Court arraignments list on 20 December 2019.

Key Takeaways

  • A miscarriage of justice at sentencing can arise not from error by the sentencing judge but from the failure of legal representatives to place relevant and significant evidence before the court, particularly evidence of a mental health history that bears materially on the sentence.
  • Where incompetent representation has caused a sentencing tribunal to proceed without evidence of a fundamental fact, the Court of Criminal Appeal may receive additional evidence on appeal even where that evidence does not satisfy the strict "fresh evidence" test established in Goodwin v R.
  • The principle from R v Abbott remains applicable: if a defendant was incompetently represented at sentencing, evidence tendered for the first time on appeal may be admitted in the interests of justice.
  • Remittal to the original sentencing court, rather than re-sentencing by the Court of Criminal Appeal, may be the appropriate remedy where no error has been identified in the original sentencing judge's approach and both parties require an opportunity to adduce and respond to new material.
  • The Court of Criminal Appeal did not express any view on how the fresh sentencing proceedings should be conducted or what evidence might be called, leaving those matters entirely to the parties on remittal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- 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