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[2026] NSWCCA 72
Court of Criminal Appeal (NSW)
2026-06-05
McHugh JA at [1] Sweeney J at [2] Emmett J at [3]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hoang v R [2026] NSWCCA 72
Hearing dates: 06 May 2026
Date of orders: 05 June 2026
Decision date: 05 June 2026
Before: McHugh JA at [1]
Sweeney J at [2]
Emmett J at [3]
Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIME – Appeals – Appeals against sentence – Failure to take into account a relevant consideration – where applicant’s evidence as to claimed mental condition reliant on self-reports – where primary judge made adverse findings as to the reliability and credibility of applicant’s evidence – where primary judge rejected applicant’s self-reported history and explanation of his offending
CRIME – Appeals – Appeals against sentence – failure to provide adequate reasons – where sentencing judge rejected elements of the applicant’s evidence – whether reasoning adequately explained in sentencing remarks – where it could be readily inferred that the sentencing judge accepted nether that the applicant’s mental health contributed to offending, nor that it reduced moral culpability
CRIME – Appeals – Appeals against sentence – Denial of procedural fairness – where primary judge rejected applicant’s evidence as to claimed mental condition and reported historical sexual abuse – whether adverse findings were made without notice
Original judgment source is linked above.
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Nguyen v R [2025] NSWCCA 42
Taylor v R [2018] NSWCCA 255
Category: Principal judgment
Parties: Dennis Hoang (Applicant)
Rex (Respondent)
Representation: Counsel:
A Djemal SC (Applicant)
T Abdulhak (Respondent)
Solicitors:
Calabria Lawyers Pty Ltd (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/00371065
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant was sentenced on 22 November 2024 to an aggregate sentence of 12 years’ imprisonment, with a non-parole period of 8 years in respect of three offences involving drug supply, including the supply of a large commercial quantity of methylamphetamine (22.5 kilograms).
The applicant gave evidence that he had been sexually abused on one occasion when he was a child and had witnessed other distressing events in his youth. The applicant also relied on an expert report diagnosing the applicant with conditions including post-traumatic stress disorder (PTSD) and expressing an opinion about the relationship between the applicant’s mental health and the offending. The sentencing judge referred to these parts of the applicant’s evidence but did not find that the applicant was sexually abused or that he suffered from PTSD. The applicant sought leave to appeal against the sentence on three grounds, being that the sentencing judge erred by:
(1) failing to make findings as to whether the applicant was sexually abused, failing to take into account the resultant PTSD, failing to make a finding as to whether the applicant’s mental health contributed to the commission of the offences, and failing to take into account the applicant’s mental health towards a finding of reduced moral culpability or as a basis for reducing the weight to be given to general deterrence;
(2) failing to explain in the sentencing remarks how those matters had been taken into account; or
(3) denying the applicant procedural fairness by making adverse findings without notice.
The Court (Emmett J, McHugh JA and Sweeney J agreeing) held, granting leave to appeal and dismissing the appeal:
(1) The sentence sought to be challenged on appeal was substantial, and the circumstances of the case warrant a grant of leave to appeal.
(2) On a sensible reading of the reasons, the sentencing judge considered and rejected the applicant’s evidence about being sexually abused and found the applicant’s evidence to be generally unreliable and unbelievable: [28]-[40]. The applicant’s self-reported history was a substantial basis for the expert opinions which the applicant said should have been taken into account: [31] and [39]. The sentencing judge was not obliged to accept the applicant’s experts’ opinions as to the applicant’s claimed conditions, or as to the capacity for the applicant’s claimed conditions to impact his decision-making or contribute to his offending in any material way: [42].
(3) Consideration of the primary judge’s reasons as a whole demonstrated the adequacy of the primary judge’s reasons in not accepting the applicant’s evidence: [45]. Having rejected certain elements of the applicant’s evidence, and made general findings that the applicant’s evidence was not reliable or credible, it could be readily inferred that the primary judge accepted neither that the applicant’s mental health contributed to his offending in a material way, nor that it reduced his moral culpability: [44]-[46].
Taylor v R [2018] NSWCCA 255 applied.
(4) There was no denial of procedural fairness in the primary judge rejecting the evidence that the applicant was sexually abused as a child and that he had PTSD: [49]. The sentencing judge is not bound to accept particular evidence, even in the absence of challenge: [55]. The applicant was on notice that his evidence – including about sexual abuse and the other distressing events said to have caused PTSD – may not be accepted, and no practical injustice was demonstrated: [60].
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 considered; Nguyen v R [2025] NSWCCA 42 applied.
McHUGH JA: I agree with Emmett J.
SWEENEY J: I agree with Emmett J.
EMMETT J: The applicant seeks leave to appeal against a sentence imposed by King SC DCJ on 22 November 2024 in respect of the following convictions:
knowingly take part in the supply of a large commercial quantity of a prohibited drug, namely 22.5 kilograms of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (count 1);
supply a commercial quantity of a prohibited drug, namely 141.09 grams of MDMA, contrary to s 25(2) of the Drug Misuse and Trafficking Act (count 2); and
supply an indictable quantity of a prohibited drug, namely 156.55 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act (count 3).
Two further Form 1 matters were taken into account in respect of count 1, being an offence of supplying a prohibited drug (64 grams of methylamphetamine) and recklessly dealing with proceeds of crime ($29,480).
His Honour imposed an aggregate sentence of 12 years’ imprisonment, with a non-parole period of 8 years, commencing on 8 December 2022. In determining an appropriate sentence, his Honour did not identify that he placed any weight on the applicant’s evidence that he had been sexually abused as a child. The Crown in this Court contends that is because his Honour did not accept the applicant’s evidence on this issue.
The proposed grounds of appeal are:
Ground 1: The sentencing Judge erred with respect to the applicant’s mental health in that his Honour:
a. failed to make a finding as to whether the applicant was sexually abused as a child and consequently failed to take into account his resultant post-traumatic stress disorder,
b. failed to make a finding as to whether the state of the applicant’s mental health contributed to the commission of the offence in a material way, and
c. failed to take into account the state of the applicant’s mental health towards a finding of reduced moral culpability or as a basis for reducing the weight to be given to general deterrence.
Ground 2: In the alternative to ground 1, the sentencing Judge erred in failing to explain in the reasons for judgment how the following matters had been taken into account:
a. the applicant’s sexual abuse as a child and resultant post-traumatic stress disorder,
b. the connection between the applicant’s mental condition and the commission of the offence, and
c. the applicant’s mental health as it related to the question of moral culpability and the weight to be given to general deterrence.
Ground 3: In the alternative to grounds 1 and 2, the applicant was denied procedural fairness in that the sentencing Judge made adverse findings without notice, namely that he was not sexually abused as a child and did not have post-traumatic stress disorder.
The applicant was pulled over by highway patrol officers while driving with his mother, his sister and his sister’s young daughter, and a search of the vehicle revealed a large volume of methylamphetamine. In due course, 23 one-kilogram bags of methylamphetamine with a purity of 78% to 79.5% were found in the vehicle. A further search of the vehicle after it had been seized uncovered cash in what was described as a sophisticated electronically operated hidden compartment.
Police executed a search warrant at the applicant’s home in Cabramatta, where they found further drugs, cash and drug supply paraphernalia. This included the MDMA that was the subject of count 2, the cocaine that was the subject of count 3, and the 64 grams of methylamphetamine and the $29,480 which were the subject of the Form 1 offences.
The applicant pleaded guilty to the three counts and admitted his guilt in respect of the Form 1 offences.
The applicant gave evidence before the sentencing judge that he was transporting the drugs, and had some of the items at his home, under duress. He said that he had been obtaining drugs for personal use from a drug dealer whom he had never seen or met, communicating only by electronic messages. According to the applicant, he ran up a debt of some $18,000 and the dealer proposed an arrangement for him to work off the debt by holding items including drugs and money. The applicant said he used some of those drugs, and as a result the dealer became angry, threatened him and said he would have to “fix this”. After that, two large, threatening men were said to have turned up at his door and told him he would have to do a drive for them, and that this led to the applicant being apprehended driving to Queensland with the large volume of methylamphetamine.
The applicant sought to explain the bags with drug residue and the scales, which had been found at his home, on the basis that after he took custody of the 23 kilograms of methylamphetamine, he was instructed to buy vacuum sealing bags and to re-measure and re-bag the drugs, then mark and label them.
The sentencing judge found that it was “most unlikely” that a drug dealer the applicant had never seen or met would allow a debt of $18,000 to accumulate. His Honour found it “even more remarkable” that the dealer would, in such a situation, entrust the applicant with drugs and money as a way of “working off” the debt. His Honour also considered that it defied common sense that the dealer, after the applicant used some of the dealer’s drugs without permission, would respond by arranging for the applicant to take unsupervised custody of 23 kilograms in circumstances where he could readily take some of it.
The primary judge summarised the applicant’s evidence that he had no knowledge of the car having a secret compartment or of the lounge in his bedroom having a secret compartment (being a secret hydraulic compartment in its base, which was empty at the time of the police search). The applicant also gave evidence that when he purchased the lounge, he was given an electronic fob, but he said he did not know what that was for, acknowledging that the lounge had no recline function. While his Honour did not comment specifically on the implausibility of this evidence, it is clear from what follows in the reasons that he regarded this evidence as inherently implausible.
The primary judge held:
53. I found the [applicant’s] explanation for his participation in this offending as being the result of duress to be entirely implausible and unbelievable. I do not accept that the offender was being truthful. I accept that he was doing his best to diminish his role and seniority as well as trying to ensure that he wrote his mother and sister out of the script as much as possible, knowing at the time that he was giving evidence that they were still awaiting trial.
54. In short, the offender has failed to convince me on the balance of probabilities that any of his particular story is true as to why he committed these offences. I accept on the evidence before me he is at the minimum a very senior player and trusted in a serious drug distribution network, and that his moral culpability is high.
55. He has been involved in the drug trade for a number of years. All of this offending was surrounded by significant indicia of drug offending, and he was not some dupe who had been asked to simply transfer some unknown goods in a bag from point A to point B.
The evidence before the sentencing judge included two psychological assessments, one by Mr Neil Ballardie dated 11 May 2021 and one by Mr Chafic Awit dated 2 September 2024.
Mr Ballardie’s report was prepared in the context of previous offending for possession of a prohibited substance and goods in personal custody suspected of being stolen. Mr Ballardie diagnosed major depressive disorder, generalised anxiety disorder and drug use disorder. Mr Ballardie opined that these conditions contributed to the applicant’s offending but that his risk of reoffending would be low to moderate if he followed through with the proposed mental health treatment plan.
Mr Awit’s report, prepared for the purposes of the proceedings below, diagnosed post-traumatic stress disorder (PTSD), persistent depressive disorder and substance use disorder. The applicant reported to Mr Awit that he had been the victim of sexual abuse by a priest at his school on one occasion when he was 11 or 12 years old. He also said that when he was 16 one of his friends was shot in the chest and that another friend died (either of a heart attack or a drug overdose) when the applicant was 18. He also said he saw someone being shot while he was driving with his mother when he was 17, and that when he was young, he witnessed three men attack another man with machetes.
According to Mr Awit, the applicant blamed his alcohol and drug abuse on being a victim of sexual assault. Mr Awit’s conclusions on the connection between the diagnosed conditions and the applicant’s offending were as follows:
[The applicant] has expressed both remorse and regret in relation to the offences. [The applicant] advised that over the years he has abused illicit substances (from a young age, through to his incarceration). His abuse of these substances were a means of him being able to deal with his prior sexual abuse, alongside other distressing events he had witnessed. The abuse of illicit substances was also to numb inadequacies that he believed he had as a person especially with women. [The applicant] advised that because of this continued abuse, he developed a fairly large drug debt that was being called up. He reported being threatened by the group he owed money to, and was given limited options to pay down the full debt immediately. [The applicant] reports that he was instructed to both store illicit substances in his residence as well as making a delivery in Queensland. He reports being scared that they may hurt him and/or his family. His actual drug debt grew larger due to using some of the substances stored at his house. [The applicant] reports that he agreed to deliver and store the illicit substance he was caught with as a means of paying down his debt. He requested his mother and sister to come with him on the journey, telling them he needed to attend a funeral in Queensland, and that they could drop him off and then later pick him up.…
[The applicant] reported that he has not properly dealt with his past, and blames himself for not seeking treatment sooner. He expressed that this is something that he wants to do in the future as he believes his past has brought him to where he is today. The writer is of the professional opinion that [the applicant’s] underlying conditions would have played some role in impacting his decision-making. The conditions diagnosed are well-documented to correlate with impaired decision-making. His Substance Use Disorder (which is also considered a Psychological condition as defined by the DSM-V) appears to have been the catalyst to [the applicant’s] significant drug debt which led him to accepting to participate in these offences to pay this debt down.
It will be observed that Mr Awit’s opinion was based in part on the applicant’s version of events about the drug debt, and in part on the applicant’s report of being a victim of sexual assault and having witnessed “other distressing events”.
On the evidence, the first time the applicant said he had been sexually assaulted was in 2024. He told his mother four or five months after he had been in custody on remand in respect of the proceedings below, and then made a civil claim for damages, in the context of which a report by psychiatrist Dr Truls Bratten was prepared, also diagnosing PTSD and substance use disorder. The applicant did not place this report before the sentencing judge, although Mr Awit was briefed with it and apparently took it into account.
In his evidence in chief, the applicant said that he did not mention the alleged sexual assault to Mr Ballardie because he was ashamed and embarrassed, and he did not think Mr Ballardie asked questions to trigger that memory. His explanation for coming to disclose it for the first time in 2023 or 2024 was as follows:
After speaking with a lot of other inmates inside gaol in gaol, they’ve told me similar exact stories to where I found my voice to actually start talking about it now and start – and I’m not feeling that ashamed and I’m more open about it now.
I was too ashamed and embarrassed and the priest is a very – has a very high social status in the community and I thought I wouldn’t be – and I believed that no one would listen to me or believe me.
In relation to his failure to mention to Mr Ballardie his experience witnessing a man being shot or a man being attacked with machetes when he was young, he said “they didn’t trigger me at the time”.
The applicant was cross-examined about not telling Mr Ballardie about the sexual abuse and the violence that he witnessed. When asked whether he first spoke about sexual abuse after others told him about their abuse, the applicant said:
They had shared similar situations as me and that’s where I found my voice to speak up about my situation too. Because I thought I was embarrassed and ashamed that I thought I was the only one that was going through it, until I found out that there were so many people in the same situation as me. I feel like there’s a voice that needs to be spoken too about it.
Q. Have you exaggerated those claims in your report to Mr Awit?
A. No, I have not.
Q. Why is there such a difference, then?
A. Because when I was on with Neil [Ballardie] I was already under the influence and I was more, well, cooked or fried under the drugs at that time and now that I’ve been sober a lot, now I’m just having all these memories and just bringing it up just, like, I’m remembering more specific things.
Q. Is it the case that you’re exaggerating to reduce your sentence?
A. I disagree with that.
[59] In addition to my rejection of the [applicant’s] evidence as defying common sense, there are a number of other matters of significance in relation to the material before me. First of all, I will refer to his previous criminal history.
The primary judge summarised the applicant’s criminal history, concluding that the applicant had a history of being involved in the possession and supply of prohibited drugs, such that he could not receive the leniency afforded to first-time offenders.
His Honour then turned to the psychological evidence, noting that he had Mr Awit’s report, provided specifically in relation to the offending before the Court, and Mr Ballardie’s report for the purposes of earlier offences. He observed at [67] that “[t]here are some significant divergence[s] between the two reports.” His Honour noted Mr Ballardie’s diagnoses and recommendations for a mental health treatment plan, but observed that there was little evidence of any ongoing treatment by Mr Ballardie.
The divergence between the two reports is picked up at [70], where the primary judge noted that Mr Awit gave a diagnosis of PTSD whereas Mr Ballardie did not, and that Mr Awit’s diagnosis appeared to be based on the applicant telling Mr Awit about the alleged sexual abuse. The primary judge added, “a matter that he had not told anyone about before speaking to Mr Awit, with the exception of recently telling his mother and instructing solicitors to commence a civil claim. That was not something he reported to Mr Ballardie at all.”
The primary judge also recorded Mr Awit having been told about the applicant witnessing other events of violence. His Honour said:
[73] I note that despite his consultations with Mr Ballardie for the purpose of the report, for court purposes, there was no mention in Mr Ballardie’s report of either of these particular alleged incidents having been reported to him – so, that is, neither the offending by the priest nor the circumstances of witnessing events of violence were referred to in Mr Ballardie’s report.
[77] [H]e has significantly diminished or lowered his age in relation to the commencement of various drugs from what he informed Mr Ballardie. I have no doubt that he has done this in order to increase the degree to which it might be said that his development has been adversely affected by his use of prohibited drugs.
[78] As to his evidence that he was assaulted by a priest, now deceased, his reason for not referring to the sexual abuse to Mr Ballardie was that it had not come up in their conversation, and it was only after he was in custody and speaking with other persons in custody who referred to themselves as having been sexually assaulted in their youth that it occurred to him that he should raise it.
[79] Another matter of concern in relation to the extent to which his evidence can be relied on or dismissed was in relation to the process of weighing and re-bagging the individual bags and labelling them.
On a sensible reading of this part of his Honour’s reasons, the primary judge identified three matters that were relevant to the applicant’s evidence either not being relied upon or being dismissed. First, the lowering of his age when he first consumed particular drugs. Second, his assertion about sexual abuse. Third, his evidence about the process of weighing and re-bagging the drugs.
After dealing with those matters, the primary judge turned to other matters at [82], with the introductory comment, “As to his past history, which I feel I can accept…”. Clearly, his Honour was drawing a distinction between the earlier matters, which he did not accept because the evidence was unreliable, and the matters to which he was turning, which were matters about which he accepted the applicant’s evidence.
The primary judge made further adverse findings about the applicant’s reliability or credibility later in the reasons. As to remorse, the primary judge said:
[90] While the offender has expressed remorse, in view of my opinion that his evidence on sentence has little or no credibility, I decline to accept that evidence as being evidence of genuine remorse rather than trite statements that he would anticipate from his past experience might assist him in achieving a lesser sentence than would otherwise be imposed.
The primary judge’s reference to his “opinion that [the applicant’s] evidence on sentence has little or no credibility” is a statement of broader application than the evidence as to remorse. It is communicating that the primary judge found the applicant’s evidence on sentence to be generally unreliable. Similarly, the primary judge at [95] recorded his observation to the parties at one of the hearings that he had found the applicant’s evidence “both unreliable and unbelievable”. These reasons return to that exchange below.
When [67], [70] and [78] of the sentencing remarks (dealing with the alleged sexual abuse and the diagnosis of PTSD) are read in their full context, it emerges with adequate clarity that the primary judge was not willing to place any weight on the applicant’s self-reported experiences in his youth, including the alleged sexual assault. One significant reason for this was the applicant’s failure to tell Mr Ballardie about any of these matters in 2021.
The sentencing judge having rejected the applicant’s self-report, a substantial part of the basis for Mr Awit’s opinion fell away. The applicant in argument before this Court urged that Mr Awit’s opinion could still have been accepted, noting that Mr Awit said that the diagnoses were reached:
by reviewing the history gathered from the client, the symptoms reported, a review of the offending behaviour, an analysis of the DSM-V Diagnostic Criteria for the diagnosis of a condition, following with the analysis of the consistency of results between this multi-modal assessment, by a trained psychological professional, to gain an accurate picture of the client.
While it may be accepted that Mr Awit’s opinion was based on more than the applicant’s self-reported history, the trial judge’s rejection of the applicant’s evidence as having little or no credibility also affected the applicant’s report of his symptoms (especially where the applicant himself sought to relate those symptoms to his alleged sexual abuse), and the applicant’s report of his offending behaviour (especially the applicant’s report to Mr Awit about the drug debt and the duress).
The primary judge returned to matters of the applicant’s mental health at [86]-[87]:
[86] I have no difficulty in accepting that the offender has over the years been anxious and depressed. It is of course a significant cause of persons turning to the use of prohibited drugs as a form of self-medication. Unfortunately, the end result is that it does not improve the anxiety or depression: it merely alleviates it for the time when the drug is having an impact.
[87] What in general happens is that these users become more depressed and anxious because they have involved themselves in an illegal activity which causes them to have ongoing concerns every day about whether they might be arrested, where they will get their next drug supply from, where they will get the money to pay for it from, and all of these factors go to significantly undermine the possibility that someone who suffers from anxiety and depression will ever be rid of it unless they cease using prohibited drugs and obtain appropriate psychological assistance.
These paragraphs, with the introductory words “I have no difficulty in accepting”, showed that his Honour accepted that the applicant suffered from anxiety and depression, but did not accept the other evidence as to his mental health. His Honour was not obliged to accept either Mr Awit’s or Mr Ballardie’s opinions as to the applicant’s claimed conditions or as to the capacity for the applicant’s claimed conditions to impact his decision-making. While his Honour recognised the link between anxiety, depression and drug use, his Honour did not accept that this contributed to his offending in a material way. This was a natural conclusion given his Honour had rejected as not credible the applicant’s explanation for his offending.
Ground 1 should be rejected.
[52] It is important to bear in mind the multiple purposes of a court in giving a sentence judgment, purposes which all point to a requirement for transparency, but not for mere recitation of law and principle. The offender and the Crown must both be enabled to understand how the sentencing judge arrived at the sentence ultimately imposed, and to ascertain whether there has been some misapplication of fact or principle, or some other error, such that there may be an available appeal on a matter of substance. Any appellate court considering whether such error has occurred must be able to determine a claim of error by considering the sentence judgment.
[53] In this regard, the basis of the requirement for reasons in a sentence judgment does not greatly differ from that applicable to any judgment of any court. In criminal cases however, sentencing remarks serve other, important, purposes and, to fulfil those purposes, such judgments must be intelligible to the lay listener or reader, and accessible to the community. The community, a term which encompasses those who have a direct interest in a particular crime, such as any victim of it, have a legitimate interest in the work of the courts, and sentencing judgments are one means by which the community may be informed of that work.
[54] As an overall statement, a sentence judgment in a criminal case must make it clear to those directly involved, and to the community more broadly, why the particular sentence was imposed in the circumstances of that case.
[55] None of those purposes requires a court to refer directly and in terms to every statutory provision considered or applied, and to every principle of sentencing law regarded as relevant. Indeed, where clarity of expression is important, to permit the parties, involved persons, and the community to understand the court proceedings, to do so could only lead to obscurity, and incomprehension.
[56] Whilst specific references in a sentencing judgment to law and principle make the job of an appellate court in determining whether there was some error in the application of principle more straightforward, that by no means dictates a need for the slavish recitation of applicable law by first instance judges. It is enough if, on considering the whole of the sentencing remarks, the appellate court is able to determine what the sentencing court did and why, and determine whether law and principle have been correctly applied.
Consideration of the primary judge’s reasons as a whole demonstrates the adequacy of the primary judge’s reasons in not accepting the applicant’s evidence about being sexually abused or about whether any mental health condition contributed to the applicant’s offending in a material way.
The applicant gave evidence that was inherently implausible in a number of different respects. The fact that the applicant had never alleged that he had been sexually abused earlier than 2023 or 2024, and that he did not tell Mr Ballardie about the other distressing events he said he witnessed, was relevant to whether the applicant’s evidence was reliable and credible. One significant matter for the primary judge, as indicated at [78], was that the applicant did not raise the alleged sexual assault until after he had been in custody with others who referred to themselves as having been sexually assaulted in their youth. While the applicant tried to explain this in cross-examination by saying that the applicant found his voice and was no longer embarrassed or ashamed after hearing about other people in custody, the primary judge was not obliged to accept this evidence.
Having rejected these matters and made general findings that the applicant’s evidence was not reliable or credible, it may readily be inferred that his Honour did not accept the psychological evidence based on the applicant’s self-report, save in the limited respects described in the sentencing remarks at [86]-[87], quoted at [41] above. In particular, it followed that his Honour neither accepted that the applicant’s mental health contributed to his offending in a material way, nor that it reduced his moral culpability.
Ground 2 should be rejected.
There was no denial of procedural fairness in the primary judge rejecting the evidence that the applicant was sexually abused as a child and that he had PTSD.
It may be accepted that the Crown in cross-examination did not put to the applicant in terms that he was lying about the sexual abuse. However, as cited above, he was questioned about not telling Mr Ballardie about the sexual assault and the other distressing events. It was also put to him that he was exaggerating in his report to Mr Awit in order to reduce his sentence.
The Crown’s written submissions were drafted in a manner that clearly recognised that it was a matter for the primary judge whether to accept (or not accept) the applicant’s evidence about his mental health. The written submissions included:
[61] The accused's claim of sexual abuse and witnessing violent incidents may have resulted in the offender self medicating though the use of drugs and alcohol. However, it is submitted that there is only a limited causal link between the accused’[s] mental health [and] offending of this scale.
[63] Mr Awit states that the substance use disorder appears to have been the catalyst for the drug debt and participation in the offence to pay down the debt. This assumes that the accused had such a drug debt and participated in the offence to pay down the debt. As set out above such an assumption should be rejected.
[65] The factors set out in De La Rose are not expressed in mandatory or unqualified terms. Where a principle does apply it is a matter of discretion to evaluate the extent of the mental illness and its significance.
[66] If your Honour finds the offender was suffering from a mental illness it is then necessary to consider the extent of the metal illness, its significance on the offending and how, if at all, it will impact upon the sentencing principles.
[67] It is submitted that a finding of mental illness, in the circumstances of this case, may explain the offender's drug taking and a motive for the offending. However, it is submitted that it had limited connection or contribution to offending of this scale and size …
[71] It is accepted that even if your Honour finds no causal connection, it may be taken into account as part of the [applicant’s] subjective case.
These submissions were explicitly drafted in a manner that recognised that it was a matter for the sentencing judge whether to accept the evidence about mental health and about any causal connection between mental health and the offending. This reflects the well-established principles that the sentencing judge is not bound to accept particular evidence, even in the absence of challenge, and that it is for the judge to decide what evidence should be accepted or rejected, provided that uncontested evidence should not be rejected capriciously or without a rational basis: Nguyen v R [2025] NSWCCA 42 at [37]-[39].
The hearings before his Honour only served to reinforce the prospect that his Honour may not accept the applicant’s evidence. The applicant gave evidence and was cross-examined on the first hearing date. During argument after this evidence, the sentencing judge clearly identified the prospect that he may not accept the applicant’s evidence about duress. His Honour also had the following exchange with the applicant’s counsel:
HIS HONOUR: What mental health issue in particular are you relying on?
GOODWIN: He was considered by Mr Baladi to be suffering—
HIS HONOUR: That was a report written for the purpose of the Court when he was pleading guilty to the earlier charges of supply.
GOODWIN: Of possession, yes.
HIS HONOUR: Possession, sorry.
GOODWIN: Yes, and that was at a date that predated the commission of these offences, yes, and then Mr Awit has further assessed him as best as he could at the recent time but also as best as he could—
HIS HONOUR: Yes, anxiety and depression very frequently go hand in glove with the use of prohibited drugs. It also goes hand in glove with the prospect of having been charged with an offence and awaiting sentence.
GOODWIN: Sure, but Mr Awit further opines in relation to a diagnosis of posttraumatic stress disorder ...(not transcribable)... which I understand Dr Bratten had diagnosed him with as a psychiatrist, and, sure, that’s for a certain purpose and that report in itself is not relied upon but can I suggest it’s also not unusual for anyone, let alone an offender who pleads guilty, and anyone in the prison population to have a long history of drug use, which, at least in part, reflects self-medication.
HIS HONOUR: No, I would say it’s most usual.
GOODWIN: Yes, and, in my submission—
HIS HONOUR: But that doesn’t excuse the offending.
GOODWIN: No, of course not. Hence his pleas of guilty. I mean, he’s in a position where—
HIS HONOUR: Or in my view reduce the moral culpability.
GOODWIN: It may, depending on whether your Honour found there was any causal link, for example, by way of impairment of judgment. That’s a matter for your Honour.
HIS HONOUR: Yes.
GOODWIN: It’s relevant in the other ways referred to, for example, by De La Rosa. I have covered that in my written submissions, unless your Honour wishes for me to particularly—
HIS HONOUR: No thank you.
GOODWIN: --submit anything further, I won’t.
His Honour was clearly foreshadowing his view that a relationship between anxiety, depression and drug use was “most usual”, but that it did not excuse the offending or necessarily reduce the moral culpability. As is indicated above, that is what emerges from the sentencing remarks. As to the final exchange about De La Rosa, that was no more than his Honour indicating he did not require assistance in relation to the principles in De La Rosa. Construed in full context it should not have been understood as his Honour indicating that he was going to accept the applicant’s submissions about the relevance of the principles in De La Rosa to the case at hand.
The matter came back before the sentencing judge on 18 September 2024. At the beginning of the hearing, his Honour said the following:
HIS HONOUR: Before I proceed with the sentence, I think I should say something to you, Ms Goodwin. First of all, I have found your client’s evidence both unreliable and unbelievable. But if his evidence of nonexculpatory duress is in fact true, then his sentence would be substantially ameliorated. I offered when I heard the sentence the other day to delay the sentencing process so that better information could be obtained. It should be available from his evidence from the mobile phone that was taken from him when he was arrested because he said that that was how he communicated with those that were exerting duress on him and otherwise, as well as taking photos that he sent to them. So I will repeat again because I don’t want to send someone to serve a lengthy term of imprisonment if they in fact have material or should have material that would assist them in getting a lesser sentence. So I am offering you the opportunity to delay the sentence in this. I would continue it part heard to some date in the future to allow for information to be obtained that might assist your client.
This invitation was accepted by the applicant’s counsel. After a short adjournment to obtain instructions, the applicant’s counsel led further evidence from the applicant, and the matter was adjourned part-heard to permit an examination of the applicant’s phone. As matters turned out, none of the further evidence obtained was corroborative of the applicant’s version of events, as his Honour observed in his sentencing remarks. However, the first words spoken by his Honour on 18 September 2024 made it clear that he thought the applicant’s evidence was “both unreliable and unbelievable”. At no point did the applicant’s counsel suggest that this was not open to his Honour.
When the course of the hearings before the sentencing judge is considered in full, the applicant was on notice that his evidence – including about sexual abuse and the other distressing events said to have caused PTSD – may not be accepted. No practical injustice has been demonstrated.
Ground 3 should be rejected.
It follows that the appeal should be dismissed.
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Hoang
R