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Court of Criminal Appeal 27 November 2024

Da Silva v R

[2024] NSWCCA 216

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE DENIAL OF PROCEDURAL FAIRNESS APPEALS APPEAL AGAINST SENTENCE

Citation: Da Silva v R [2024] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 27 November 2024
Judges: Stern JA (with Dhanji J and Faulkner J agreeing)

Background

The applicant pleaded guilty to three serious federal drug and money laundering offences arising from a police search on 29 September 2022. Officers found over 5,400 grams of pure methamphetamine, cocaine, cannabis, heroin, and approximately $233,890 in cash. On 6 December 2023, the District Court sentenced the applicant to an aggregate term of 12 years and 9 months, with a non-parole period of 8 years and 3 months.

At the sentencing hearing, the applicant relied on unchallenged evidence from himself, his mother, and a psychologist (Mr Watson-Munro). He described suffering repeated sexual abuse as a child around 2007, beginning illicit drug use at age 14 as a coping mechanism, and developing post-traumatic stress disorder. The Watson-Munro report diagnosed him with a moderate and recurring depressive disorder.

The sentencing judge accepted the applicant's history of drug misuse but gave the childhood abuse "little, if any, weight" due to absence of supporting material. The judge also rejected the psychologist's depression diagnosis outright, without having raised that prospect during the hearing or inviting submissions on the point.

  • Whether the sentencing judge denied procedural fairness by signalling he would proceed on the basis that the childhood sexual abuse occurred, but then effectively discounting it on nexus grounds without adequate warning
  • Whether the sentencing judge denied procedural fairness by rejecting the psychologist's depression diagnosis without giving any notice of his intention to do so
  • Whether the sentencing judge failed to take into account the applicant's childhood trauma as a relevant sentencing consideration

Decision

Childhood abuse (grounds 1 and 2): The Court found no procedural unfairness on this point. The sentencing judge had signalled during the hearing that the "nexus" between the abuse and the offending was a live concern. Senior counsel for the applicant was therefore on notice and had the opportunity to address causative significance. Consistent with established authority, it was for the applicant to satisfy the sentencing judge on the balance of probabilities that the abuse both occurred and materially contributed to the offending. The Court also found no failure to consider a relevant factor: the judge had regard to the abuse history but simply accorded it little weight, which is a different thing from ignoring it.

Rejection of the psychologist's diagnosis (ground 1A): The Court upheld this ground. The depression diagnosis was based on Mr Watson-Munro's clinical assessment and the Beck Depression Inventory, a formal testing instrument. No cross-examination of the report was sought, and no submission was made challenging it. In those circumstances, it was procedurally unfair for the sentencing judge to reject the diagnosis without first indicating to the applicant that he was minded to do so, thereby foreclosing any opportunity to address the point. This finding was decisive: while the report did not attribute the offending to the applicant's depression, the depressive disorder was relevant because it may cause a custodial sentence to weigh more heavily on the applicant.

Resentencing: The Court resentenced the applicant. It inferred, consistently with the unchallenged evidence, that the depressive disorder would make imprisonment harder to bear. Together with the applicant's substance use disorder, this informed a longer parole period. Applying a 25% discount for the guilty pleas, the Court imposed an aggregate sentence of 10 years and 9 months with a non-parole period of 6 years and 10 months, both commencing 29 September 2022.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Bennett DCJ on 6 December 2023 quashed
  • Applicant resentenced to an aggregate term of imprisonment of 10 years and 9 months, commencing 29 September 2022 (expiring 28 June 2033), with a non-parole period of 6 years and 10 months (expiring 28 July 2029)

Key Takeaways

  • A sentencing court denies procedural fairness when it rejects unchallenged expert evidence, particularly a clinical diagnosis based on formal testing, without first signalling to the offender that it proposes to do so and providing an opportunity to address the matter.
  • Signalling a concern about the "nexus" between a background circumstance and the offending during a sentencing hearing is sufficient to put an applicant on notice; no additional warning is required before that nexus issue is resolved adversely.
  • Giving a mitigating factor "little or no weight" after considering it is legally distinct from failing to take it into account. The former does not constitute an error of the kind that would vitiate a sentence.
  • A diagnosed depressive disorder need not be causally connected to the offending to be relevant at sentencing: it may be relevant to the extent a custodial sentence will weigh more heavily on the offender.
  • Under the applicable framework, an offender seeking to rely on adverse background circumstances, such as childhood abuse, bears the onus of proving both that the event occurred and that it played a material role in the offending conduct, on the balance of probabilities.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 302.2(1), 302.3(1), 302.4(1), 400.4(1)
- Crimes Act 1914 (Cth), ss 16BA, 19AB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 37, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Judiciary Act 1903 (Cth), s 68(1)

Cases
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- DC v R [2023] NSWCCA 82
- KAB v R [2015] NSWCCA 55
- Devaney v R [2012] NSWCCA 285
- O'Neil-Shaw v The Queen [2010] NSWCCA 42
- Crane v R [2024] NSWCCA 87
- Edmonds v R [2022] NSWCCA 103
- Beevers v The Queen [2016] VSCA 271
- McGregor v R [2024] NSWCCA 200
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518