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6
Court of Criminal Appeal 20 September 2024

Shortland v R

[2024] NSWCCA 174

Fraud & dishonestyPublic order & justice offences
CRIME A PPEALS APPEAL AGAINST SENTENCE A PPEALS A PPEAL AGAINST SENTENCE WHETHER PRE

Citation: Shortland v R [2024] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 20 September 2024
Judges: Stern JA; Cavanagh J; Sweeney J

Background

The applicant pleaded guilty in March 2022 to three counts of dishonestly obtaining a financial advantage by deception and one count of threatening a witness with intent to influence them. Around the time of the plea, his legal representative conveyed to him that the Crown anticipated a prison term of approximately two years.

The applicant had disclosed a history of mental health issues to his new legal representatives in January 2022. Legal aid funding for a psychologist was approved in May 2022, but no psychologist was identified in time to prepare a report before the sentencing hearing. His solicitor indicated an adjournment would likely push the matter to December or beyond.

Holding a subjective but mistaken belief that his non-parole period would be no worse than two years, and having already spent considerable time in custody, the applicant instructed his lawyers not to seek an adjournment. He was sentenced on 29 July 2022 to an aggregate term of 8 years and 9 months, with a non-parole period of 6 years and 6 months. No psychological or psychiatric evidence was placed before the sentencing judge.

  • Whether the sentencing judge erred by failing to account for 17 days of pre-sentence custody (Ground 1)
  • Whether a miscarriage of justice occurred when the applicant's legal representatives failed to present psychological evidence at the sentencing hearing, in circumstances where the applicant gave instructions against an adjournment (Ground 2)
  • Whether the sentence was manifestly excessive (Ground 3)
  • Whether an extension of time to appeal should be granted

Decision

Extension of time: The Court accepted the explanation for the delay, which included difficulties accessing material from the previous solicitor's file. An extension of time was granted.

Pre-sentence custody (Ground 1): It was common ground that the sentencing judge was not informed of the 17-day period during which the applicant was held in custody from 1 to 17 March 2021. The omission was the result of inadvertence. Under s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court is required to account for time spent in pre-sentence custody. The Court upheld this ground, adjusting the commencement date of the sentence to 31 May 2021.

Miscarriage of justice (Ground 2): Stern JA confirmed that a miscarriage of justice in sentencing proceedings can arise independently of any finding of incompetence by counsel. The relevant question is whether material evidence was available and relevant to sentence, and whether the offender was deprived of the opportunity to have that evidence considered in mitigation. The Court found that a report from Dr Paul Pusey, a Clinical and Forensic Psychologist, would have presented a material prospect of a lesser sentence had it been before the sentencing judge. Critically, the evidence did not establish that the applicant was advised as to the likely sentencing outcome or the significance of psychological evidence before he gave instructions against an adjournment. His instructions were given in the context of a genuine but erroneous belief about the likely non-parole period. In those circumstances, the Court found practical unfairness amounting to a miscarriage of justice.

Gambling disorder as mitigation (obiter, Cavanagh and Sweeney JJ): Cavanagh J, with Sweeney J agreeing, observed that mere gambling as a motive for financial offending cannot ordinarily be a mitigating circumstance. However, where an offender is shown to suffer from a recognised psychological disorder, such as a gambling disorder as defined in DSM-5, which is causally related to the offending, the position may be different. Whether such a disorder has any impact on the sentencing discretion depends entirely on the circumstances, including the nature of the offending and the relationship between the disorder and that offending. Stern JA declined to express a view on this question.

Manifest excess (Ground 3): Given the Court's conclusion on Ground 2, it was unnecessary to consider this ground.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A miscarriage of justice in sentencing proceedings can arise without any finding of incompetence on the part of counsel. The operative question is whether an offender was deprived of the opportunity to have material and relevant evidence considered in mitigation.
  • Where an offender gives instructions that result in evidence not being placed before a sentencing court, those instructions must be assessed in the context of what advice the offender actually received. An absence of evidence that the offender was advised of the significance of that evidence, or the likely sentencing range, may weigh heavily in favour of finding practical injustice.
  • Under s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court is required to account for all pre-sentence custody. Failure to do so, even through inadvertence, constitutes error warranting correction on appeal.
  • Per Cavanagh J (Sweeney J agreeing), a gambling disorder recognised under DSM-5 may, if causally connected to offending, carry mitigating weight at sentence. This is a contextually sensitive assessment, and the Court of Criminal Appeal indicated it does not necessarily follow from Johnston v R [2017] NSWCCA 53 that such a disorder can never be mitigating in financial crimes.
  • Offenders who have spent time in pre-sentence custody retain the benefit of that time being accounted for in the commencement date of their sentence, regardless of whether it was drawn to the sentencing judge's attention.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(3)
- Crimes Act 1900 (NSW), ss 192E(1)(b), 322(1)(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1(3)

Cases:
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Pym v R [2014] NSWCCA 182
- John Wayne Tsiakas v R [2015] NSWCCA 187
- Rae v R [2019] NSWCCA 284
- Johnston v R [2017] NSWCCA 53
- DC v R [2023] NSWCCA 82
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Nudd v R [2006] HCA 9; 80 ALJR 614
- Lloyd v R [2022] NSWCCA 18
- R v Fordham (1997) 98 A Crim R 359
- R v Jiminez [1999] NSWCCA 7
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353