Citation: Nguyen v R [2025] NSWCCA 42
Court: Court of Criminal Appeal, New South Wales
Date: 26 March 2025
Judges: Davies J, Dhanji J (primary reasons), Huggett J
Background
The appellant was convicted of two counts of knowingly taking part in the cultivation of prohibited cannabis plants by enhanced indoor means, involving 506 and 99 plants respectively, and one count of doing an act with intent to pervert the course of justice by supplying a false lease agreement. He was sentenced in the District Court to an aggregate term of 5 years and 6 months imprisonment with a non-parole period of 3 years. A combined 20 percent discount applied, comprising 10 percent for guilty pleas and 10 percent for assistance to authorities.
At the sentencing hearing, the appellant tendered a psychologist's report identifying several mental health conditions and expressing the opinion that those conditions were causally connected to the offending conduct. The Crown did not expressly challenge the report during the proceedings. The sentencing judge nonetheless rejected the opinion concerning the nexus between the appellant's mental health and his offending.
The appellant sought leave to appeal on a single ground: that the sentencing judge denied him procedural fairness by rejecting the psychologist's opinion without first signalling his scepticism and giving the appellant an opportunity to respond.
Legal Issues
- Whether the sentencing judge denied the appellant procedural fairness by rejecting the psychologist's opinion on the causal link between mental health conditions and offending, without raising his concerns during the hearing.
- Whether the absence of a Crown challenge to the expert report created any obligation on the sentencing judge to accept that opinion.
- Whether any denial of procedural fairness resulted in "practical injustice" sufficient to warrant a remedy on appeal.
Decision
Dhanji J, with Davies and Huggett JJ agreeing, granted leave to appeal but dismissed the appeal. The Court accepted that the Crown had not challenged the psychologist's report during the sentencing proceedings. However, that did not oblige the sentencing judge to accept the opinion. The psychologist's statement that the relevant symptoms "may well have been in existence" for a longer period was characterised as speculative, particularly given that the appellant's psychological state at the time of assessment was very likely affected by the fact that he had been charged and was facing imprisonment. No other evidence before the sentencing judge supported the presence of the relevant mental health issues at the time of the offending.
On the procedural fairness question, the Court applied the established principle that a denial of procedural fairness must result in "practical injustice" before it provides grounds for appellate relief. The appellant was unable to identify any sustainable argument that the sentencing judge could properly have been persuaded to accept the opinion on the evidence available. The Court acknowledged it would have been preferable for the sentencing judge to have flagged his scepticism to the parties, noting that a judge remains free to do so and to reconvene if necessary. However, preference for a different procedure is not the applicable test.
The Court further observed that, while an adjournment to gather additional evidence was theoretically possible, there was no basis to conclude such an adjournment was likely to be granted, nor that supportive evidence could in fact have been obtained. The inability to point to any concrete, obtainable evidence that might have remedied the deficiency in the psychologist's reasoning was fatal to the procedural fairness argument.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A sentencing court is entitled to reject an unchallenged expert opinion where that opinion rests on speculation rather than evidence, without being obliged to first invite submissions on the point.
- The test for a successful procedural fairness ground on appeal is not merely that a different approach would have been preferable, but that the absence of that approach caused "practical injustice."
- Where a psychologist's opinion about the existence of symptoms at the time of offending is unsupported by any contemporaneous evidence, and where the assessment occurred after charges were laid, the Court of Criminal Appeal confirmed that a characterisation of the opinion as speculative is open to a sentencing judge.
- No practical injustice arises simply because an adjournment to obtain further evidence was theoretically available: the appellant must demonstrate that the adjournment was likely to be granted and that supporting evidence could realistically have been produced.
- Rejecting this appeal, the Court noted that sentencing judges process large volumes of material, and issues may not crystallise until after submissions close. Judges retain the discretion to raise concerns with parties at any stage, but are not always obliged to do so.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c) (leave to appeal against sentence)
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a) (cultivation of prohibited plants)
Cases:
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Weir v Regina [2011] NSWCCA 123
- McLaughlin v R [2025] NSWCCA 13
- Richards v R [2023] NSWCCA 264
- R v Nguyen [2024] NSWDC 273 (the decision under appeal)
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
- Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593
- Da-Pra v R; R v Da-Pra [2014] NSWCCA 211