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7
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: Court of Criminal Appeal
Date: 20 September 2024
Judge(s): Stern JA (at [1]); Cavanagh J (at [90]); Sweeney J (at [102])

Background

The applicant pleaded guilty to three counts of dishonestly obtaining a financial advantage by deception and one count of threatening a witness, together with a number of further offences taken into account on a Form 1. The fraud charges involved sustained schemes carried out over several years against three victims, former friends and acquaintances, who were deceived into investing money in what were falsely presented as legitimate trading accounts. The victims lost a combined total exceeding one million dollars.

On 29 July 2022, the applicant was sentenced in the District Court to an aggregate sentence of 8 years and 9 months imprisonment, with a non-parole period of 6 years and 6 months, commencing on 17 June 2021. The sentencing judge noted the applicant's likely gambling addiction but found it did little to mitigate his substantial moral culpability.

The applicant sought leave to appeal out of time against the sentence, raising three grounds: that 17 days of pre-sentence custody was overlooked; that a miscarriage of justice occurred because psychological evidence was not placed before the sentencing court; and that the sentence was manifestly excessive.

Legal Issues

  • Whether an extension of time should be granted for filing the application for leave to appeal.
  • Whether the sentencing judge erred in failing to credit 17 days of pre-sentence custody against the commencement date of the sentence.
  • Whether a miscarriage of justice arose from the failure to present psychological evidence to the sentencing court, either due to incompetence of legal representatives or due to the practical unfairness of the circumstances in which the applicant gave instructions not to adjourn for that purpose.
  • Whether the sentence was manifestly excessive (not determined, given the outcome on the other grounds).

Decision

Extension of time: The Court was satisfied that the delays in accessing material from the file of the applicant's previous solicitor justified extending the time for filing the application. Leave to appeal out of time was granted.

Ground 1 (pre-sentence custody): It was common ground that from 1 to 17 March 2021 the applicant was held in pre-sentence custody following the refusal of bail on Count 4, and that this period was not brought to the sentencing judge's attention. Under s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court is required to take such custody into account when deciding the commencement date of a sentence. The Court found the omission resulted from inadvertence and upheld this ground. The sentence should have commenced on 31 May 2021 rather than 17 June 2021, reducing the overall sentence by 17 days (at [5]-[6]).

Ground 2 (miscarriage of justice, psychological evidence): The Court found that a report from Dr Paul Pusey, a Clinical and Forensic Psychologist, obtained after sentencing, was significant evidence going to the applicant's subjective case. The report addressed diagnoses consistent with bipolar affective disorder, substance use disorder, and gambling disorder, and drew a potential causal link between those conditions and the offending. The Court was satisfied there was a significant possibility that this evidence, had it been before the sentencing court, could have led to findings reducing the applicant's moral culpability or the weight given to general or specific deterrence (at [50], [56]-[58]).

The Court examined in detail the circumstances in which no psychological report was obtained. Legal aid funding to retain a psychologist was granted in May 2022, but no steps were taken until early June 2022, by which time the sentencing hearing was listed for 30 June 2022 and available appointments extended into August. The applicant ultimately gave instructions not to adjourn. The Court found that at the time he gave those instructions, his subjective belief was that he would receive a non-parole period of no worse than 2 years, which was plainly wrong. There was no evidence that he had been advised at any point after his plea in early March 2022 of the likely sentence he might actually receive, nor that he was advised that psychological evidence could significantly mitigate the sentence (at [82]-[84]). In those circumstances, the decision not to adjourn was not a forensic choice made with proper information, but rather a decision based on an erroneous belief about the likely outcome. The Court held that a miscarriage of justice arose, and that it was unnecessary to determine whether the legal representatives were incompetent (at [85]-[86]). Ground 2 was upheld, and Ground 3 (manifest excess) was not considered.

Orders Made

  • Time for filing the application for leave to appeal extended to 15 December 2023.
  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed on 29 July 2022 set aside.
  • Proceedings remitted to the District Court for re-sentencing by Harris DCJ.

Key Takeaways

  • A miscarriage of justice in sentencing proceedings can arise even where an offender gave instructions not to adjourn, if those instructions were based on an erroneous belief about the likely sentence and the offender had not been adequately advised about the significance of obtaining relevant evidence (at [85]-[86]). The Court confirmed it is unnecessary to establish incompetence of counsel where practical unfairness has resulted from the absence of material capable of significantly affecting the outcome.

  • The test applied in both conviction and sentence appeals is whether there is a significant possibility that the acts or omissions complained of affected the outcome; a miscarriage of justice will be established where that threshold is met (at [45]).

  • Psychological or psychiatric evidence addressing a recognised disorder and its causal relationship to offending retains potential mitigatory relevance even where the sentencing judge has found a gambling addiction does not ordinarily mitigate sentence; the significance of the evidence will depend on the specific findings it could support (at [56]-[58]).

  • Cavanagh J, with Sweeney J agreeing, expressed the view that a recognised gambling disorder under DSM-5 should not automatically be treated as a mere explanation for offending with no mitigatory weight; to the extent Johnston v R [2017] NSWCCA 53 is read as precluding any mitigatory role for a clinically recognised gambling disorder in financial crime cases, that reading was respectfully doubted (at [94]-[101]).

  • Failure to credit pre-sentence custody against a sentence commencement date will ground an appeal where the omission results from inadvertence, and the remedy is to adjust the commencement date to reflect the custody actually served (at [5]-[6]).

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
- DC v R [2023] NSWCCA 82
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- John Wayne Tsiakas v R [2015] NSWCCA 187
- Johnston v R [2017] NSWCCA 53
- Lloyd v R [2022] NSWCCA 18
- Nudd v R [2006] HCA 9; 80 ALJR 614
- Pym v R [2014] NSWCCA 182
- 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
- Rae v R [2019] NSWCCA 284
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6