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Court of Criminal Appeal 20 December 2024

Shaw v R

[2024] NSWCCA 241

Theft & propertyPublic order & justice offences
CRIME APPEALS AGGRAVATED ENTER DWELLING WITH INTENT STEAL PROPERTY FROM DWELLING HOUSE LARCENY MISCARRIAGE OF JUSTICE ESTABLISHED

Citation: Shaw v R [2024] NSWCCA 241
Court: Court of Criminal Appeal, NSW
Date: 20 December 2024
Judges: Davies J, N Adams J, Yehia J

Background

The applicant pleaded guilty in the Local Court to four offences committed on 5 December 2022: aggravated entering a dwelling with intent to commit a serious indictable offence, stealing property from a dwelling house, and two counts of larceny. The offences involved entering an apartment complex in Surry Hills and stealing items including a laptop while the victim was asleep, and separately stealing items from employees at a fruiterer's cool room later the same day.

The applicant was sentenced in the District Court on 22 January 2024. Herbert DCJ imposed an aggregate term of two years and six months' imprisonment, with a non-parole period of one year and six months, after applying a 25% discount for the utilitarian value of the guilty plea.

On appeal, the applicant deposed that his sentencing solicitor knew about his history of childhood sexual abuse and a related civil claim. The applicant said he had instructed the solicitor to obtain a psychological or pre-sentence report, but was advised such a report was unnecessary. No psychological or psychiatric material relating to the abuse, or its impact on the applicant, was placed before the sentencing judge.

  • Whether the failure by the applicant's legal representatives to place before the sentencing court material about his history of sexual abuse and associated mental health and substance abuse issues constituted a miscarriage of justice.
  • Whether the Court of Criminal Appeal should receive fresh evidence on appeal in order to avoid that miscarriage of justice.
  • Whether, on resentencing, the absent subjective material warranted a reduction in the aggregate sentence.

Decision

The Court, in reasons delivered by Yehia J (with Davies J and N Adams J agreeing), granted leave to appeal and upheld the ground of appeal. The Court confirmed the well-established principle that an applicant is generally bound by the conduct of counsel at first instance. However, the Court retains flexibility to receive new evidence on appeal where necessary to prevent a miscarriage of justice.

The absent material, relating to the applicant's history of childhood sexual abuse, the onset of associated mental health conditions, and substance abuse, was described as compelling subjective evidence. The Court found it had the capacity to reduce the applicant's moral culpability, moderate the weight afforded to general deterrence and denunciation, and affect the assessment of rehabilitation prospects. Its absence deprived the sentencing judge of a full picture of the applicant's circumstances.

Notably, the Crown conceded that it was open to the Court to find the ground of appeal established on the basis of the evidence filed on appeal. The Court emphasised there was no error by the sentencing judge in the way she conducted proceedings. The miscarriage arose solely from the omission of relevant and compelling material by those representing the applicant.

On resentencing, the Court took into account evidence of the applicant's engagement with drug treatment programs in custody, positive behavioural changes observed by his mother, and reasonable prospects of rehabilitation if treatment continued. The Court found special circumstances existed, having regard to the applicant's need for ongoing treatment and supervision upon release.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Sentence imposed by the District Court on 22 January 2024 quashed.
  • Applicant resentenced to an aggregate term of imprisonment of 2 years and 3 months, commencing 2 September 2023 and expiring 1 December 2025, with a non-parole period of 1 year and 3 months, expiring 1 December 2024.

Key Takeaways

  • A miscarriage of justice at sentencing can arise not from error by the sentencing judge, but from the failure of an applicant's legal representatives to place compelling subjective material before the court, where that material had real capacity to affect the outcome.
  • The Court of Criminal Appeal confirmed its power to receive fresh evidence on appeal to prevent a miscarriage of justice, even though applicants are ordinarily bound by the forensic decisions of their counsel at first instance.
  • Under the principles in Bugmy v The Queen (2013) 249 CLR 571, evidence of childhood sexual abuse and its connection to mental health conditions and substance misuse is the kind of subjective material capable of reducing moral culpability and moderating the weight given to general deterrence and denunciation.
  • A factual dispute about what instructions the applicant had given his solicitor was ultimately left unresolved, because the Crown's concession meant the Court did not need to determine it in order to uphold the ground of appeal.
  • Special circumstances warranting a longer parole period were found where an applicant had demonstrated meaningful engagement with drug treatment in custody and required continued supervision and treatment in the community upon release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 117, 148
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- BB v R [2024] NSWCCA 13
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- ET v R [2024] NSWCCA 131
- Khoury v The Queen (2011) 209 A Crim R 509; [2011] NSWCCA 118
- McInnes v R [2024] NSWCCA 104
- R v Birks (1990) 19 NSWLR 677
- R v Fordham (1997) 98 A Crim R 359
- Rae v The Queen [2019] NSWCCA 284
- Rossall v R [2021] NSWCCA 200
- Shortland v R [2024] NSWCCA 174
- Stubbings v R [2023] NSWCCA 69
- Tsiakas v The Queen [2015] NSWCCA 187