Citation: MN (a pseudonym) v R [2022] NSWCCA 78
Court: Court of Criminal Appeal, New South Wales
Date: 13 April 2022
Judges: Simpson AJA, Adamson J, Bellew J
Background
The applicant (referred to by pseudonym) pleaded guilty to supplying not less than a large commercial quantity of 3,4-Methylenedioxyamphetamine (MDA), a prohibited drug. Four further supply offences were taken into account on a Form 1 at sentencing. The sentencing judge in the District Court imposed a total term of 5 years and 6 months with a non-parole period of 3 years and 8 months.
At the sentence hearing, the applicant tendered two expert reports from Professor Greenberg, a psychiatrist, who opined that the applicant likely suffered from cocaine use disorder, cannabis use disorder, depressive disorder, gambling disorder, and undiagnosed post-traumatic stress disorder at the time of the offending. Professor Greenberg also concluded that there was a causal link between those mental health conditions and the offending conduct.
The applicant sought leave to appeal on two grounds: first, that the sentencing judge failed to properly account for his mental disorders; and second, that a miscarriage of justice arose from the absence of a supplementary expert report at the sentence hearing.
Legal Issues
- Whether the sentencing judge erred by failing to adequately take into account the applicant's mental disorders, including their causal connection to the offending and their bearing on moral culpability, general deterrence, and the weight of custody.
- Whether leave should be granted to admit a supplementary expert report on appeal that had not been before the sentencing judge, on the basis that its absence caused a miscarriage of justice.
Decision
On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's approach. Her Honour had accepted the expert evidence establishing a causal link between the applicant's mental disorders and the offending. The sentencing judge expressly found that the applicant's judgment was impaired by cocaine use while also finding that he well understood the consequences of his actions. This finding, read in the context of the reasons as a whole, was sufficient to address the submissions made on behalf of the applicant.
The Court noted that the sentencing judge had also considered whether the applicant's background and upbringing reduced his moral culpability under the principles from Bugmy v The Queen. Her Honour found the applicant's childhood did not fall within the category of disadvantage described in that case, but nonetheless took his background into account. The Court found no error in the sentencing judge declining to address, in greater detail, submissions that had been put only by implication from references to authority.
On the second ground, the Court observed that this ground had been pressed only on the contingency that the first ground succeeded on the basis that the sentencing judge had rejected Professor Greenberg's opinion. Because the Court proceeded on the premise that the sentencing judge had accepted that opinion, the second ground did not arise and leave was refused. The Court also took the opportunity to endorse observations made in Wang v R [2021] NSWCCA 282, which deprecated the practice of retaining an expert to provide a supplementary report on appeal with a view to elaborating on an earlier report already tendered at the sentence hearing.
Orders Made
- Leave to appeal refused.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's reasons need not address in exhaustive detail every submission advanced, provided the reasons are sufficient to address the matters actually raised.
- A finding that an offender's judgment was impaired by substance addiction, taken together with acceptance of expert evidence of a causal link to the offending, can adequately discharge the sentencing court's obligation to consider the role of mental disorder in reducing moral culpability.
- Under the principles in Muldrock and Hemsley, mental illness may reduce moral culpability, moderate the weight given to general deterrence, and bear on the burden of a custodial sentence, but only where the sentencing judge's reasons reflect engagement with the evidence and submissions to that effect.
- The Court reiterated the Court of Criminal Appeal's earlier deprecation in Wang v R of the practice of obtaining supplementary expert reports on appeal to elaborate on reports already tendered below, signalling consistent disapproval of that approach.
- No error was established simply because the sentencing judge did not apply the Bugmy principles where the evidence did not support a finding of the kind of childhood disadvantage and deprivation those principles contemplate.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Hemsley [2004] NSWCCA 228
- Wang v R [2021] NSWCCA 282