Citation: R v King [2023] NSWDC 100
Court: District Court of New South Wales
Date: 14 April 2023
Judge: Priestley SC DCJ
Background
The offender, Anthony Patrick King, appeared for sentence on three charges of dishonestly obtaining a financial advantage by deception, contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW). Each charge carries a maximum penalty of 10 years imprisonment with no standard non-parole period. The offending had a history dating back to 2000, and the offender had been sentenced on related matters in 2007 and 2008.
In support of his subjective case, the offender sought to rely on a psychiatric report from 2022 and a psychological report from 2018. A central factual dispute concerned the offender's claim, first raised in the 2018 psychological report, that he had suffered childhood sexual abuse.
The sentencing exercise also required the court to consider how to treat a previously imposed sentence for a separate Commonwealth offence when arriving at an appropriate aggregate sentence.
Legal Issues
- Whether psychological and psychiatric reports containing unverified, untested histories given by the offender are admissible at sentence, or whether objection goes to weight rather than admissibility
- What weight, if any, should be given to the offender's claim of childhood sexual abuse, which was first raised in 2018 and not mentioned at two earlier sentencing hearings
- How to construct an appropriate aggregate sentence for the current offences, taking into account a previously imposed sentence for a separate Commonwealth offence and applying the principles from Mill v The Queen and Luong v R
Decision
Admissibility of expert reports. The District Court ruled that the psychiatric and psychological reports were admissible. The court reviewed the line of Court of Criminal Appeal authority running from Qutami through to Lloyd (2022) and concluded that those cases consistently treat the issue as one of weight, not admissibility. Where the Crown objects or challenges the untested nature of the histories underpinning such reports, the appropriate response is to give those reports little or no weight, not to exclude them.
Childhood sexual abuse claim. The court declined to accept the offender's claim that he suffered childhood sexual abuse. The assertion appeared for the first time in the 2018 psychological report, despite the offender having been sentenced twice before in 2007 and 2008. The court noted that the offender chose not to give evidence and be tested on the claim. A victims compensation payment of $10,000 had been made, but the court observed that the claim had not been tested in that process either and should be viewed with the same caution. Given the repeated and dishonest nature of the offending and the unexplained failure to raise the abuse at earlier hearings, the court was not satisfied, even on the lower civil standard, that the abuse had occurred.
Aggregate sentence and the Commonwealth offence. The court considered how to treat a sentence already imposed for a separate Commonwealth offence when structuring the aggregate term. Applying the principles from Mill and Luong, the court reasoned that the overall criminality should be assessed as if all matters had been dealt with at one time, then adjusted to account for subsequent events including delay and rehabilitation. The court found the existing combined sentence slightly excessive and revised the aggregate term for the current offences accordingly, incorporating a 25% discount for utilitarian plea.
Orders Made
- The offender was convicted on all three charges under section 192E of the Crimes Act 1900 (NSW).
- The offender was sentenced to an aggregate term of imprisonment with a non-parole period of 2 years and 6 months, commencing 21 December 2022 and expiring 20 June 2025.
- The balance of term is 18 months, expiring 21 December 2026.
- A 25% discount was applied to reflect the utilitarian value of the guilty pleas.
Key Takeaways
- Psychological and psychiatric reports containing untested histories given by an offender are admissible at sentence proceedings in NSW; the longstanding line of Court of Criminal Appeal authority treats Crown objection as going to weight, not admissibility.
- Where the Crown objects to such reports, the sentencing court is entitled to give the unverified histories within them little or no weight, particularly where the offender has chosen not to give sworn evidence and be cross-examined.
- A claim of childhood sexual abuse raised for the first time several years after earlier sentencing hearings, and advanced only through untested expert reports without sworn evidence, may be given no weight even on the lower civil standard applicable at sentence.
- Under the principles in Mill and Luong, a court sentencing for fresh offences must consider how the overall criminality would have been assessed if all matters had been dealt with simultaneously, then adjust for intervening events such as delay and rehabilitation progress.
- An Intensive Correction Order was unavailable by operation of section 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW), given the length of the sentence imposed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4, 68
- Evidence Act 1995 (NSW), s 4
Cases
- Cahyadi v R [2007] NSWCCA 1
- Cooper v R [2021] NSWCCA 292
- De Angelis v R [2015] NSWCCA 197
- Hall v The Queen [2021] NSWCCA 220
- Imbornone v R [2017] NSWCCA 144
- Johnston v R [2017] NSWCCA 53
- Lai v R [2021] NSWCCA 217
- Lloyd v R [2022] NSWCCA 18
- Luong v R [2014] NSWCCA 129
- McLaren v R [2021] NSWCCA 12
- Mill v The Queen [1988] HCA 70
- R v Cattell [2019] NSWCCA 297
- R v Clarke [2019] NSWDC 2
- R v Elfar [2003] NSWCCA 358
- R v Holder [1983] 3 NSWLR 245
- R v McGourty [2002] NSWCCA 335
- R v Obbens [2022] NSWCCA 109
- R v Palu [2002] NSWCCA 381
- R v Qutami [2001] NSWCCA 353
- R v Todd [1982] 2 NSWLR 517