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Court of Criminal Appeal 1 May 2024

Smith v R

[2024] NSWCCA 59

Theft & property
CRIME SENTENCE APPEAL AGAINST SENTENCE DENIAL OF PROCEDURAL FAIRNESS EVIDENCE ADMITTED WITHOUT OBJECTION PSYCHIATRIST NOT CROSS

Citation: Smith v R [2024] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 1 May 2024
Judges: Adamson JA, Basten AJA, Wilson J

Background

The appellant was sentenced in the District Court at Lismore to four years and six months imprisonment, with a non-parole period of two years and nine months, for two counts of aggravated break and enter and commit a serious indictable offence (larceny in company) under s 112(2) of the Crimes Act 1900 (NSW).

At the sentencing hearing, the appellant tendered a pre-sentence psychiatric report from Dr Gerald Chew. Dr Chew concluded that the appellant's mental and cognitive impairments had a causal connection to his offending. The Crown did not object to the report being tendered, did not challenge its findings, and did not cross-examine Dr Chew.

The sentencing judge reserved her decision without raising any concern about Dr Chew's conclusions. When judgment was delivered, her Honour rejected the causal link finding, declined to reduce the appellant's moral culpability, and declined to reduce the weight given to general deterrence. The appellant was given no opportunity to respond to that rejection before or after sentence was imposed.

  • Whether the sentencing judge denied the appellant procedural fairness by rejecting unchallenged expert psychiatric evidence without first notifying the parties and giving them an opportunity to be heard on that point.
  • Whether the rejection of Dr Chew's findings on causation was material to the sentencing outcome, specifically in relation to moral culpability and general deterrence.

Decision

The Court of Criminal Appeal unanimously held that the appellant was denied procedural fairness. Because the Crown had not challenged Dr Chew's report and the parties proceeded on the basis that causation was at least undisputed, the sentencing judge was required to alert the parties before rejecting that evidence. The appellant's legal representatives were entitled to assume that further steps, such as calling Dr Chew to give oral evidence or requesting a supplementary report, were unnecessary.

The Court acknowledged that a sentencing judge is not bound to accept matters treated as common ground between the parties. However, where a judge forms a view contrary to that common ground after reserving judgment, procedural fairness requires giving the parties notice and an opportunity to respond, whether by reopening the matter, adducing further evidence, or making additional submissions. This obligation applies regardless of how the situation arose.

The Court drew a distinction from Goodridge v R [2014] NSWCCA 37, where procedural unfairness was not established because the trial judge's rejection of psychiatric evidence was based on other material already before the court, such as a police interview the psychiatrists had not considered. Here, no comparable basis for departure had been raised or signalled to the parties.

All three judges emphasised that the pressures facing judges in busy regional list courts do not remove the procedural fairness obligation. They suggested practical measures to manage the tension between fairness and efficient list management. These included notifying parties by email after the hearing if a concern arises post-adjournment, inviting the parties to agree to a statement of facts under s 191 of the Evidence Act 1995 (NSW), and courts adopting a practice of reminding parties that no concession is binding on the court and that all relevant evidence should be put before it regardless.

Orders Made

  • Leave to appeal from the aggregate sentence imposed on 24 March 2023 in the District Court at Lismore granted.
  • Appeal allowed; sentence set aside.
  • Appellant resentenced to imprisonment for 4 years, comprising:
  • A non-parole period of 2 years and 9 months, commencing 23 February 2022 and expiring 22 November 2024.
  • A balance of term of 15 months, expiring 22 February 2026.
  • The appellant is first eligible for release on parole on 22 November 2024.

Key Takeaways

  • Where expert evidence is tendered on sentence without objection and the Crown does not challenge it, a sentencing judge who proposes to reject that evidence must notify the parties and provide an opportunity to respond before doing so.
  • A sentencing judge is not bound to accept concessions or undisputed evidence, but silence in the face of such material, followed by rejection without notice, constitutes a denial of procedural fairness where the evidence is material to the outcome.
  • The psychiatric evidence was directly relevant to two significant sentencing considerations: the offender's moral culpability and the weight to be accorded to general deterrence. Its silent rejection without opportunity for the appellant to address the point caused practical injustice.
  • Procedural fairness obligations apply even when the denial was inadvertent and arose from the practical constraints of a busy regional list court.
  • The Court of Criminal Appeal distinguished Goodridge v R [2014] NSWCCA 37, confirming that the basis for departing from undisputed expert evidence matters: where no alternative factual basis was identified or signalled, the unfairness is established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Evidence Act 1995 (NSW), s 191
- Migration Act 1958 (Cth), s 424A(1)

Cases:
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Button v R [2010] NSWCCA 264
- Weir v R [2011] NSWCCA 123
- Goodridge v R [2014] NSWCCA 37
- Dang v R [2014] NSWCCA 47
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
- Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
- Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
- Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
- Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
- Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51
- Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34