Eden v R

JUDGMENT

1. GLEESON JA: I agree with Dhanji J.
2. FAGAN J: I agree with Dhanji J. The plea run before Lerve DCJ was one of great deprivation and adversity in the applicant's upbringing that he was doing his best to overcome since commission of the offence, by training in vocational skills, with some promise of success. The proposed additional evidence of Dr Berry would be directed to a different and inconsistent case, to the effect that the applicant suffers irremediable cognitive deficits that he has had since birth, which would be said to explain his offending and reduce his culpability - but with the corollary of raising doubt about his rehabilitation and elevating the risk that he would re-offend. As Dhanji J has pointed out, while Dr Berry's report identifies limitations in some of the applicant's mental faculties and propounds a diagnosis of a recognised disorder, it does not explain how, if at all, weakness in those faculties would have caused the offending conduct. If the alternative case were permitted to be run it is therefore not clear that evidence from Dr Berry would support it.
3. DHANJI J: The applicant, Mr Hayden Eden, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Lerve DCJ in the District Court at Wagga Wagga on 19 November 2021.
4. The applicant pleaded guilty in the Local Court on 14 April 2021 to an offence of armed robbery with wounding, contrary to s 98 of the Crimes Act 1900 (NSW). The maximum penalty for the offence is 25 years imprisonment.
5. The applicant was sentenced to a total term of 3 years and 9 months imprisonment commencing on 18 November 2021, comprising a non-parole period of 2 years, expiring on 17 November 2023, and a balance of term of 1 year and 9 months and expiring on 17 August 2025.
6. The applicant initially sought leave to appeal on the following grounds: "1. The learned sentencing judge erred in his determination of the objective seriousness of the offending; 2. The learned sentencing judge erred in his determination of special circumstances; 3. The learned sentencing judge erred in his determination of the weight to be accorded to the applicant's neurodevelopmental impairment resulting from him being born an addicted baby with [Foetal] Alcohol Spectrum Disorder; [and] [4]. The sentence was manifestly excessive."
7. At the hearing of the application, the applicant's counsel relied only on ground 3.

Factual background

1. The factual background was summarised by Lerve DCJ in his Honour's sentencing remarks as follows: "The offender was almost 21 years of age at the time of offending and the victim was 19. In the days leading up to 30 March 2018, the victim was messaging Jalissa Williams via Facebook Messenger. While the two of them were Facebook friends, they had never met in person. Shortly before 10pm on 30 March 2018, the pair exchanged messages and during the course of the messages the victim agreed to attend Williams' home to provide her with $50 cash. In return the victim expected that they would be engaging in some type of sexual activity. The offender was at Williams' home during this exchange of messages. At about 10.25 the victim drove his Kia sedan to a service station where he used the ATM to withdraw $50. Williams had provided an address in Callaghan Street, Ashmont, a suburb of Wagga Wagga and the victim began travelling to that location. Williams also sent a message asking the victim whether he could take her brother (the offender) to the Ashmont Mall when he arrived. She advised that he would be waiting on the nature strip. The victim arrived at the nominated address and saw the offender on the nature strip. The offender got into the victim's vehicle and they drove off towards the Mall. On arriving at that location, the offender directed the victim to pull over and he did so. The offender said, "You have to give me $50 so I can get some smokes." The victim replied, "She said I was giving it to her." The offender then communicated with Williams with his phone and she replied with a message, "Give my bro the money." The victim still unsure, called Williams who confirmed that he should give the money to the offender. The victim put his phone into the door well of the car. As he was getting out of the vehicle, the offender pulled a knife from his pants. The knife had a blade of approximately 25 centimetres and a Hickory style wooden handle. The offender leant back towards the victim with the knife in his right hand. With his left hand he forcibly grabbed the victim by his shirt collar and with his right hand brought the knife up to the victim's throat with the full face of the blade being on the victim's neck. The offender said, "Guess what, cunt? I'm not her brother, I'm her boyfriend. Why the fuck are you trying to hit on her?" The victim said, "Sorry," a number of times in an attempt to resolve the situation. The offender said, "You are a weak cunt hitting on someone else's missus." As he said that, he pulled the knife away from the victim's throat and used it to slice the knife across the victim's upper left shoulder. The victim could feel the wound bleeding through his shirt. The offender, in the course of his evidence to which I will return, under cross examination, admitted that the wounding was a deliberate act. The offender continued to scream at the victim and said, "Give me the $50 now." The victim removed the $50 from his wallet and gave it to the offender. The offender asked what else the victim had in his wallet. The victim showed the offender that there was no further money. The offender yelled, "What's in the fucking door tray?" The victim gathered all the items in the door well and placed them on the passenger seat. The offender rifled through the items and took a few dollars in coins from the cup holder between the seats. The offender said, "I could have killed you tonight cunt, and chucked you in the boot. I could have signed a receipt, sold your car, no one would know. If you ever do this again cunt, you're gone." The offender directed the victim to access his Facebook account and block contact with Williams and waited to ensure the victim complied. The offender got out of the car and the victim drove home. On arriving home the victim saw his sustained deep laceration to the upper left arm and went to the Local Base Hospital for treatment. The facts recite that the laceration was 7 centimetres long and 4 millimetres deep with no evidence of injury to the tendons, nerves or muscles. The wound was sutured under local anaesthetic. The victim took a photograph of the wound while he was at the hospital. That photograph is reproduced in the facts. The victim reported the matter to police after receiving treatment at the hospital. On the afternoon of 31 March 2018, the police attended Williams' home. She denied all knowledge of the offence and denied ever interacting with the victim. The offender was interviewed on 1 May 2018 during which he told police that he and Williams were Facebook friends, that they did not interact very often and denied any knowledge of the offence. Police obtained the call charge records that indicated significant interaction between the offender and Williams between 29 March 2018 and 1 April 2018. The offender was again interviewed on 2 January 2019 where police put the contents of the call records to him. He told police that anyone could be using his phone. On 8 July 2018, but I will check that date, police obtained an induced statement from Williams who implicated the offender. On 28 May 2020 police sought and obtained an arrest warrant in respect of the offender. On August 2020 police from Wagga Wagga went to Canberra where they successfully applied for the offender's extradition to New South Wales. The offender was taken to the Queanbeyan Police Station where he was again interviewed. The offender told police he was in a relationship with Williams at the time, that he punched the victim in the mouth while he was in the car with him and stole $50 and cigarettes which he later gave to Williams."

Proceedings on sentence

1. The proceedings on sentence were conducted on 13 October 2021. The Crown bundle contained the notice of committal, charge certificate, agreed facts, the applicant's criminal record in New South Wales and the Australian Capital Territory, the applicant's custodial history, a sentence assessment report and a victim impact statement of Mr Peter Morris. Tendered on behalf of the applicant were four character references, a document relating to the applicant's enrolment in a Certificate III in Hospitality and three further letters relating to the applicant's "non-biological grandmother" Ms Stella Little. The applicant, the applicant's sister Ms Victoria Preston and Ms Stella Little also gave oral evidence.

Evidence of the applicant

1. The applicant gave evidence of his deprived upbringing. He said that when he was born, both of his parents were addicted to illicit substances, in particular methamphetamine and that he was exposed to drug use and the presence of drug paraphernalia at his home on a regular basis. The applicant gave evidence that when he was around four years old his father stopped using drugs and left the house. He said that he remained at home with his mother who continued to use drugs.
2. The applicant told the Court that he attended four or five different primary schools and three or four different high schools, leaving school about three to four months into year 8. He said he was encouraged to do so by his mother.
3. In his evidence, the applicant said that as a child there was often not enough food at home and that, as a result, from an early age his mother encouraged him to steal food from the local shops. He told the Court that his mother also encouraged him to break into houses and cars for the purpose of stealing money.
4. In respect of his own drug use, the applicant said it commenced around the age of 11 when his mother encouraged him to use methamphetamine because it would make him feel happy. He gave evidence that he stopped using drugs for a period of nine months when he lived with his father, but resumed using methamphetamines upon returning to his mother's residence. He said that by the age of 20, and at the time of offending, he was using heroin and methamphetamine.
5. The applicant told the Court that from the time of his arrest on 28 August 2020 he had not used drugs. He said that he moved to Narrandera to live with his sister where he assisted her and her partner with their four children. The applicant also gave evidence that he was studying for a Certificate III in hospitality and explained that it was his ambition to work as a chef in his own business.
6. During his evidence the applicant stated that he was "regretful" of his actions, that he "hates the person [he] used to be", and that the offending was "disgusting".
7. During cross-examination, the applicant was asked whether he used the knife to intentionally slash the victim's arm, to which the applicant responded "yes".

Evidence of Victoria Preston

1. The applicant's sister Ms Preston gave evidence and confirmed what the applicant had said about his upbringing. She said that their mother was using heroin at the time the applicant was born and that the applicant was born addicted to that drug. She also gave evidence that the applicant had been sexually abused as a child by an uncle.
2. Ms Preston also confirmed that while on bail the applicant had been living with her and assisting her around the house and with her children.

Evidence of Stella Little

1. Ms Little described herself as the applicant's "non-biological grandmother." Her evidence corroborated that of the applicant regarding his mother's drug use. Ms Little also gave evidence that the applicant was remorseful.

Remarks on sentence

1. In considering the objective seriousness of the offence, the sentencing judge referred to the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. In assessing the present offence against the guideline, his Honour noted the applicant's age and limited criminal history, that a substantial weapon was used, and that there was actual violence inflicted in the form of a wound (although his Honour did note that wounding was an essential element of the offence). His Honour also observed that while there was some degree of planning it was not substantial, and that while the victim was not engaged in a position that made him vulnerable, (as postulated in the guideline) he was in a car with limited means of escape. Finally, by way of comparison with the guideline, his Honour noted there was a limited amount of property taken.
2. The sentencing judge found that the while the wound was not minor it was not a serious example of wounding. His Honour was, based on the applicant's admission, satisfied beyond reasonable doubt that the wound was intentionally inflicted. In the absence of medical evidence, the sentencing judge was not, however, prepared to find beyond reasonable doubt that the victim suffered ongoing consequences. Additionally, his Honour noted that the self-induced intoxication of the applicant at the time of the offence was not mitigating with respect to the objective seriousness of the matter. The sentencing judge ultimately found that the offence fell "moderately below the mid-range" of objective seriousness.
3. His Honour regarded the applicant's criminal history as "relatively limited", noting his prior convictions for offences of possession of a prohibited drug and custody of knife in a public place in 2017; possession of a prohibited weapon, custody of a knife in a public place and possession of a prohibited drug in 2019; and being carried in a stolen car in 2020. Significantly, the applicant had not previously been sentenced to imprisonment. It was a record that somewhat belied the applicant's background. The sentencing judge regarded the applicant as entitled to "some minor consideration for his relatively limited record" given his age.
4. The sentencing judge found that the applicant had a particularly strong and powerful subjective case. His Honour found that the applicant had experienced deprivation in his formative years and was persuaded that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were "enlivened to a very significant extent", reducing the moral culpability of the applicant. His Honour further found that significant weight was to be given to those factors.
5. The sentencing judge accepted the applicant was remorseful, accepted responsibility for the offending and expressed regret and empathy towards the victim. He found that the applicant had, from the time of his arrest, led a prosocial life and that, in light the applicant's demonstrated efforts at rehabilitation, he had good prospects of rehabilitation.
6. His Honour found that the applicant's strong subjective case required the starting point for the sentence to be lower than what it would otherwise have been. He did, however, in this context, remind himself of what was said in R v Dodd (1991) 57 A Crim R 349 at 354 that "there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case". His Honour, additionally referred to the observations of Bellew J in Clarke Jeffries v R [2019] NSWCCA 56 at [45], to the effect that a strong subjective case cannot result in a sentence that is disproportionate to the objective seriousness of the offending.
7. The sentencing judge considered the submission on behalf of the applicant that the sentence be served by way of an Intensive Correction Order (ICO). His Honour found that in having regard to the offending, the maximum penalty and the standard non-parole period, the sentence would exceed 2 years by some margin and an ICO would not be available.
8. The sentencing judge applied a discount of 25% for the utilitarian value of the applicant's plea and took into account the impact of the COVID-19 pandemic on persons in custody. His Honour made a "generous" finding of special circumstances based on the applicant's age, that it was the applicant's first custodial sentence, together with the need for an extended period of supervision to ensure reintegration and continuation of the applicant's positive steps towards rehabilitation. His Honour then imposed the sentence as set out above.

The ground of appeal

1. As noted above, at the hearing of the application the applicant's counsel (for good forensic reason, I would respectfully observe) relied on the sole ground that the sentencing judge "erred in his determination of the weight to be accorded to the applicant's neurodevelopmental impairment resulting from him being born an addicted baby with [Foetal] Alcohol Spectrum Disorder". While the ground is somewhat infelicitously expressed, it is clear from the written submissions and the conduct of the hearing, the applicant's real complaint is not that the judge erred, but rather there was a miscarriage of justice on the basis that the sentencing judge did not have available to him evidence that the applicant suffers Foetal Alcohol Spectrum Disorder (FASD). The applicant's position is explained below.
2. On the appeal the applicant sought to rely on a report of a clinical neuropsychologist, Dr Jamie Berry dated 14 June 2022. It might be immediately noted the report postdates the applicant's sentencing. Additionally, the applicant sought to rely on a report of Dr Laura Mason, consultant psychiatrist dated 5 August 2021. That report was obtained for the sentencing hearing but was not tendered. The essence of the applicant's complaint is that there was a miscarriage of justice as a result of the sentencing judge not being appraised of the evidence which Dr Berry could have provided. That complaint was argued with clarity and force on behalf of the applicant. The Court was further assisted by able and focussed submissions on behalf of the respondent.
3. Before dealing with the report of Dr Berry, it is convenient to say something about the report of Dr Mason. That report (which was available but not tendered at the sentence hearing) essentially indicated a lack of cooperation with the interview process, including the applicant unilaterally terminating the teleconference. Dr Mason concluded that, despite his complaints of such, the applicant did not have issues with depression or anxiety. She described him as "very difficult to interview, presenting as guarded and increasingly hostile and agitated in relation to basic questions asked of him". She concluded: "From his presentation during interview, it was clear that Mr Eden has difficulty with distress tolerance and ability to manage stress, leading to him acting impulsively and somewhat aggressively. He may benefit from psychological involvement to learn strategies to manage his handling of stress and anger management."
4. Having regard to the above, the decision not to tender the report was an understandable forensic choice. Further, while a diagnosis of FASD and its consequent impact might explain the applicant's interaction with Dr Mason (which was, presumably, also not assisted by being a teleconference as a consequence of the pandemic), it remains the case that Dr Mason's report is not helpful to the applicant. The real issue on this application is whether the applicant should be allowed to rely on the report of Dr Berry. The respondent opposes this course. It is necessary to consider first the principles related to the admission of evidence on an application for leave to appeal against sentence.

The admission of new or fresh evidence on appeal

1. An appeal to this Court is not an opportunity for an offender to recast his or her case. It is, clearly, highly desirable that judges called to sentence offenders be provided with all reasonably available evidence on which an offender wishes to rely, and which is likely to materially impact the exercise of the sentencing discretion. Hence, as Hamill J observed in Barnes v R [2022] NSWCCA 140 at [24] ("Barnes"): "the long-standing practice of intermediate appellate courts around Australia is that sentence appeals are generally to be determined based on the material that was before the sentencing court" (footnotes omitted). His Honour then said that, in the ordinary course, it is only after error in the exercise of the sentencing discretion has been demonstrated, that evidence of an offender's progress towards rehabilitation may be admitted. However, his Honour importantly noted this rule is not absolute: see Barnes at [25].
2. The utility of the categorisation of evidence as "fresh" or "new" and the circumstances in which such evidence will be admitted on appeal were discussed in detail by Hamill J in Barnes. It is unnecessary to repeat his Honour's comprehensive analysis. In the present case it was accepted the evidence was "new" rather than "fresh". That is, the evidence relates to facts in existence at the time of sentence and could, with reasonable diligence, have been discovered at that time: see Barnes at [28]; Wentworth v R [2022] NSWCCA 293 at [5]-[9].
3. In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10] (set out by Hamill J in Barnes at [29]) the High Court observed: "Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice." (footnotes omitted)
4. The question here is whether the Court should avail itself of the available flexibility to admit the new (and not fresh) evidence. As can be seen from the above, this turns on the question of whether it is, in the present case, necessary to do so to avoid a miscarriage of justice. This, in turn, requires consideration be given to the potential significance of the report to the sentencing of the applicant.

The report of Dr Berry and its significance to the sentencing exercise

1. As noted above, Dr Berry concluded that the applicant suffers from FASD. The respondent raised a question as to whether the opinion of Dr Berry "would have" been accepted by the sentencing judge given it was, at least in part, based on reports of the applicant's sister, who was then aged 5 or 6, as to her mother's drinking, and apparent drug use, when pregnant with the applicant. I do not know what would have happened had the report been tendered at the sentence hearing. Perhaps Dr Berry would have been required by the Crown. In the circumstances of this case, I do not find it helpful to speculate as to what would have happened in the District Court. There is, before this Court, a report expressing conclusions which have not, other than in the manner just referred to, been challenged. In these circumstances, it is appropriate to deal with the matter on the basis on which it was primarily contested by the respondent - that is, on the basis that even if Dr Berry's opinions were accepted, they would not have impacted on the sentencing exercise.
2. Much of Dr Berry's report is dedicated to the appropriateness of a diagnosis of FASD. Of relevance, however, is not so much the diagnosis, but rather the applicant's functioning. The affixing of a "label" to a condition suffered by an offender does not automatically find expression in the sentence passed on an offender: see Anderson v R [2022] NSWCCA 187 at [33]-[35]; R v Wendy Olive Lawrence [2005] NSWCCA 91 at [23]. With respect to the applicant's functioning, the report is relatively brief. It states: "At the current time, Mr Eden demonstrates impairments in the areas of auditory working memory, processing speed, academic skills (reading, mathematics, spelling), and expressive and receptive language skills. Furthermore, he endorses items on a validated self-report inventory suggesting extremely severe difficulties with everyday executive functioning and he also self-reported elevated levels of anxiety, stress and depression symptoms. Relative strengths include nonverbal intellect and memory/new learning abilities. Notably, Mr Eden's receptive and expressive language skills were at floor level (0.1 percentile), consistent with those of a nine or 10 year old child. … Mr Eden's intellectual compromise is limited to his processing speed and auditory working memory as described in the Results section above. These two factors are together referred to as Cognitive Proficiency, which was assessed to be at the first percentile for Mr Eden's age. This represents a severe impairment, as it is more than two standard deviations below the mean."
3. The report does not address, at least explicitly, the impact of these impairments on the commission of the offence. I can, however, accept that an impairment in executive functioning is likely to have impacted the applicant's decision-making processes, including, in particular, the wounding of the victim, an act which it appears was unnecessary for the fulfilment of the applicant's plan. This does not, however, automatically mean that important evidence likely to have a real impact on the outcome was denied to the sentencing judge. There were other matters impacting on the applicant's decision making at the time, most notably, the impact of his drug addiction. While it may be problematic to attempt to isolate individual factors and speculate on their impact on the events, what can be said is that even if a causal connection could be drawn between impairment to the applicant's judgment as a result of his suffering FASD and his commission of the offence, this would not necessarily impact an assessment of the objective gravity of the offence: see DS v R; DM v R [2022] NSWCCA 156 at [96]. As was there pointed out, the nature of the impairment, the nature and circumstance of the offence, and the degree of connection between them must all be considered. In the present case, the evidence does not rise above an assumption that an impairment in executive functioning was likely to impact the applicant's decision making. In the absence of evidence as to the degree of any impact on the events in question, in circumstances where there were other factors at play, most notably the applicant's drug use, it is unlikely the sentencing judge would have regarded the objective seriousness of the offence as being reduced.
4. Further, and more significantly, while evidence of poor executive function and consequent impulsivity had the capacity to impact the applicant's moral culpability, it also had the capacity to inform the weight to be given to the need for specific deterrence. Indeed, it had the capacity to significantly undermine the case that was led on behalf of the applicant at sentence. That case, in essence, and without wishing to do it a disservice, presented the applicant as a young man who had suffered an extreme level of childhood deprivation and who had, as a result of his introduction to drugs at a young age by persons with the responsibility of guiding him, descended into addiction in which context he committed this offence for the purposes of obtaining money.
5. At the sentencing hearing, the applicant's counsel took advantage of his relatively limited record, and the progress made by the applicant subsequent to this offence. The result was that the sentencing judge found that despite the applicant's significantly deprived background, which enlivened the principles in Bugmy "to a significant extent, reducing [his] moral culpability", the applicant was now leading a prosocial life and had good prospects of rehabilitation.
6. Against the above, evidence that the applicant suffers from difficulties with decision making and impulse control had the capacity to highlight the unprovoked violence involved in the robbery and the need, in this context, for weight to be given to specific deterrence. As has been said many times, matters relevant to sentence may pull in different directions: see R v Engert (1995) 84 A Crim R 67 at 68 ("Engert"); Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [58]. In Engert, Gleeson CJ (sitting in this Court) said, in a passage set out by the plurality in Bugmy at [45]: "A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen [No 2]. Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender."
7. In the present case is not self-evident that the report of Dr Berry, had it been available, would necessarily have resulted in a lesser sentence. Indeed, given the capacity of the report to undermine the applicant's case as to his rehabilitation and the unlikelihood of him reoffending, it is not clear that it would necessarily have been relied on. As it was, it is clear that Lerve DCJ was greatly moved by the applicant's subjective case. His Honour's reasons give little, if any, emphasis to deterrence, specific or general. It is apparent that, in the light of the positive findings in favour of the applicant, his Honour regarded the primary constraint on his discretion was the need to impose a sentence that adequately reflected the seriousness of the offence (a matter which was not impacted by the report of Dr Berry).
8. It follows from the above that I am unable to find that a miscarriage of justice was occasioned by the absence of Dr Berry's report before the sentencing judge. I would refuse to admit the report. The orders I propose, consequent on this determination are as follows: 1. Leave to appeal granted. 2. Appeal dismissed.

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