Mousavi v R

Court of Criminal Appeal (NSW)|2019-04-17|Before: Johnson J, Hulme J, Wright J

The applicant's criminal record

Bennett SC DCJ noted that the applicant was born in 1997, and was thus "barely an adult at the time he engaged upon this offending." Notwithstanding his youth, however, the applicant did not come before the Court clear of antecedents. His prior offending included: 1. On 20 April 2015, he committed a number of driving-related offences, including using an unregistered motor vehicle, exceeding the speed limit, driving dangerously, failing to remove an ignition key from an unattended vehicle, using an uninsured vehicle, failing to stop at a red light, failing to lock and secure an unattended vehicle, leaving the vehicle with the engine running, driving having never been licensed, and negligent driving. He was dealt with in Court on 11 February 2016, whereupon fines were imposed and some of the offences were dealt with under s 10A of the Sentencing Procedure Act. 2. On 5 June 2015, he committed offences of robbery armed with an offensive weapon, for which, on 22 January 2016, he was granted probation for a period of 18 months. A further three offences of dishonestly obtaining financial advantage by deception were taken into account on a Form 1.
The applicant had also committed further offences after the offences the subject of this application for leave to appeal. On 6 November 2016, the applicant contravened an Apprehended Violence Order and caused damage to property. In respect of each of these subsequent offences, he was ordered to enter bonds of nine months under s 9 of the Sentencing Procedure Act, on 23 January 2017.
His Honour expressed concern that "the pattern of offending upon which this offender has engaged from the first has demonstrated a regrettable attitude towards his responsibilities as a member of the community." Bennett SC DCJ noted that this pattern of behaviour had continued in custody, with the applicant's custodial record showing that, between 24 December 2016 and 19 May 2017, he had engaged in four occasions of misconduct including disobeying a direction, possessing a drug, and intimidation.

Pre-sentence report

The sentencing judge then considered the PSR of 5 June 2017 prepared in respect of the applicant. His Honour expressly noted that it should be read in conjunction with the psychologist's report so that comparisons and contrasts might be drawn.
It was found that the applicant's behaviour in custody had been less than desirable but that he had some work at Lithgow before being transferred to another gaol.
As to his family background, the sentencing judge accepted that the applicant had been born in Iraq, the eldest of three siblings. His father left the family and came to Australia in about 1998, when the applicant was one year old. Apart from one occasion, the applicant did not see his father again until the applicant migrated to Australia with his mother eight years later, in about 2006. After such a long absence, there were difficulties adjusting within the family unit and the parents argued. It appears their relationship has since ended. In about 2011, the father began to use illicit substances and to gamble. He introduced the applicant to drug use and criminality and is presently incarcerated on unrelated offences. The applicant is close to his mother, who remains supportive.
The applicant had "a disruptive education" because of behavioural issues leading to multiple suspensions. He has a limited employment history.
The applicant's drug use started when his father introduced him to cocaine. Subsequently, he began to abuse benzodiazepine and use cannabis. He had attempted to enter a program to deal with the problem but the opportunity was lost when his bail was revoked. The applicant said he was willing to undertake drug and alcohol intervention.
The sentencing judge was concerned about the applicant's attitude to his offending noting that, although the applicant signed the agreed facts, the PSR recorded that he disputed almost all of those facts, he attempted to minimise his actions, he cast aspersions on the victim of the second attempted robbery offence claiming he was a well-known drug dealer, and he maintained that the victim of the first attempted robbery offence would not have been affected by the offending in any manner.
His Honour accepted that his risk of reoffending was assessed as being medium to high and his criminogenic needs were "education, employment, leisure, recreation, companions, alcohol and drug problems, emotional, personal attitude and orientation".
The sentencing judge found, in relation to the applicant's mental health issues, that he reported being diagnosed with schizophrenia, at about the age of 14, and this diagnosis was confirmed in 2016 when his medication was changed. The applicant's admission that he had been non-compliant with his medication when not in custody was noted.
In summary, the sentencing judge observed from the PSR the applicant's dysfunctional upbringing, his illicit substance use, and his father's criminal activity, and that this had led the applicant into that lifestyle which had clearly impacted upon him. It was found that he would benefit from supervision but community service was not an appropriate option in the circumstances.

Psychologist's report

Bennett SC DCJ then turned to consider the psychologist's report, which the applicant had tendered. His Honour expressed the view that "some of the observations therein were generous", and he did not agree entirely with what the psychologist had to say. From the transcript of the hearing (at T1.42-T2.15, T5.35-T6.32 and T7.29-T9.7) and his Honour's remarks on sentence, I am satisfied that the sentencing judge was referring to the psychologist's opinions concerning the following issues: 1. whether the applicant "lacked the capacity for judgment and an appreciation of the consequences of his conduct"; and 2. whether the applicant recognised the seriousness of his criminal conduct and was genuinely remorseful.
His Honour accepted, as the Crown had conceded, that the applicant did have a mental health issue and had received medication from Justice Health, with which he had been compliant. It was noted, however, that there was nothing from Justice Health before the sentencing judge giving definitive information about diagnoses "in that environment", that is, while the applicant was in custody.
The sentencing judge expressly noted the applicant's history in Iraq and in Australia, the influence of his father, and their adverse effect on his mental condition. He also referred to the diagnosis of schizophrenia, including auditory hallucinations and some visual hallucinations, and the fact that these had been stabilised with Risperidone, until the applicant ceased to take the medication, against medical advice, at which time the symptoms returned. It was noted that medication was resumed on incarceration and the applicant's schizophrenia with depressive symptomatology led to his being prescribed Zyprexa.
His Honour recorded the applicant's substance abuse, as disclosed in the psychologist's report, including cocaine, Xanax and marijuana. He also noted the detail in which presenting symptomatology and issues were described and the psychometric assessment. Express mention was also made of the psychologist's conclusion that the applicant "accurately recognised the seriousness of his criminal conduct and the dire implications of drug abuse and that his mental health is susceptible to the effects of drugs which requires therapeutic intervention and rehabilitation".
The sentencing judge then expressed the view that there were "contrasts to be drawn between what is contained in [the psychologist's] report and the pre-sentence report". Nonetheless, he went on to say: "but read together it seems to me that they support a finding that the [applicant] has had a challenging life through his formative years, which has no doubt contributed to the normalisation or the acceptability of misconduct of the type upon which he had engaged across the range of offending that has brought him before the Courts, including the instant offences."
His Honour then addressed a specific submission that he should "give full weight to the opinions offered by the psychologist that come to the view that that he lacked the capacity for judgment and an appreciation of the consequences of his conduct". This submission was not rejected in its entirety but the judge said "I do not believe the proposition as to be so simply stated". His Honour then considered various factors, which indicated whether the applicant lacked capacity for an appreciation of the consequences of his conduct, and concluded: "I agree that he is not an entirely suitable character for general deterrence, but I am persuaded drawing upon the facts and circumstances of the offending and giving full weight to the opinions of the psychologist … that he has sufficient awareness and understanding to attract a measure of weight to this aspect of the sentencing exercise. Of course, there is the counterbalance that one must bring to bear and that is the need to protect the community from someone who might not be sufficiently mature to exercise the level of control that will prevent him from committing serious crimes such as this."

Material before the Court and the purposes of sentencing

It was then noted that the applicant had not given evidence and the court was left to rely on the PSR, the psychologist's report, and the support provided by the applicant's mother.
The sentencing judge also set out some of the relevant purposes of sentencing and the need to consider the prospects of rehabilitation.

Seriousness of the offences

The first attempted robbery offence was assessed as being "of the less serious type" and this was consistent with his Honour's observation during submissions that he agreed that this offence was "considerably below mid-range for that sort of offence".
By contrast, the second attempted robbery offence was said to be "at a much higher level" as it involved presenting the weapon to the side of the head and use of the weapon to rain blows upon the victim. His Honour also took into account that there was at least some level of injury of modest significance suffered by the second victim.
The sentencing judge took into account the guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111 (Henry) and the relevant features of the present case.

The sentences

After some discussion of a referral to the Drug Court, the indicative sentences were announced. His Honour found there were special circumstances and imposed the aggregate sentence of 6 years with a non-parole period of 3 years and 6 months. The applicant was referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.

Ground 1

The first ground of appeal was that there had been a miscarriage of justice resulting from the absence of psychiatric evidence in the sentencing proceedings.

Submissions - ground 1

It was submitted on the applicant's behalf that, although the diagnoses of schizophrenia, and the applicant's treatment for that condition, were mentioned in the PSR and psychologist's report before the sentencing judge, there was no supporting material. In particular: 1. there were no records from Justice Health concerning the applicant and his diagnoses and treatment; and 2. there was no report from a psychiatrist confirming the diagnosis of schizophrenia or providing other relevant medical information concerning the applicant.
It was contended that the absence of this material affected the sentencing. In particular, it was said that this was demonstrated by the learned sentencing judge giving indications that: 1. he could give little weight to the information that was before him as to the applicant's psychiatric condition because it was hearsay; and 2. he did not entirely agree with the psychologist's assessment as she had only assessed the applicant on one occasion with very limited psychometric testing.
In these circumstances, it was submitted that the Court should allow the affidavit of Paris Donnelly sworn on 22 November 2018 to be read, and should admit the evidence annexed to that affidavit, namely the applicant's Headspace and Justice Health records, and the report of forensic psychiatrist, Dr Furst.
The applicant's submissions relied upon the exceptions to the general principle that evidence of events subsequent to the passing of sentence is not admissible in appeals against the sentence unless the Court upholds the appeal and comes to re-sentence: R v Josef Mioduszewski [2004] NSWCCA 154 at [30]-[31] (Dunford J, Grove and Howie JJ agreeing) and [40] (Howie J). In particular, it was submitted that the psychiatric material annexed to Ms Donnelly's affidavit should be admitted as "fresh evidence" for the purpose of assessing whether there was a miscarriage of justice because a long standing and significant psychiatric condition was present at the time of sentencing but the extent of the illness had not been explored and therefore was not known to the sentencing judge.
It was also said that the present case was exceptional having regard to: 1. The age of the applicant; 2. His "long history" of schizophrenia marked by psychotic episodes of auditory and visual hallucinations; 3. The reduction in the applicant's moral culpability because of significant deprivation and personal exposure to extreme violence in Iraq, his exposure to drugs and violence by a schizophrenic father, and his use of drugs in an attempt to deal with mental health issues. In this regard, it was noted that moral culpability and the weight to be afforded to general deterrence, while often related, were conceptually distinct, relying on the comments of Hamill J in R v NK (No 3) [2015] NSWSC 1257 at [90]; 4. The first attempted robbery offence was "at the very lower end of objective seriousness, as acknowledged by the Court"; 5. The second attempted robbery offence was difficult to assess because the applicant "maintains an account which is not consistent with his plea" and which "is not ad idem with the Agreed Facts and may be in fact a reflection of some distorted thinking on his part"; and 6. The fact that neither party made reference to the strength of the Crown case in relation to the first attempted robbery offence although it was based on identification.
The applicant also relied upon the decision in Zreika v R [2012] NSWCCA 44 at [81] and [82]; 223 A Crim R 460 (Zreika), where it was said that if there was material or a factor relevant to sentence, that was not used or understood or that was overlooked, and there was, as a consequence, a miscarriage of justice, then the Court may entertain arguments not put below.
The Crown submitted that the material annexed to Ms Donnelly's affidavit was not "fresh evidence". It concerned a psychiatric condition that was known at the time of sentencing and was considered by the sentencing judge. It was not unknown or not fully appreciated and the material could have been obtained with reasonable diligence at the time. If anything, it was "new evidence". The Crown relied upon the principles summarised in Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133 at [71]-[72]. It was also submitted that there was no explanation why the material was not obtained at the time of sentence and the material has not been shown to have the capacity to have affected the outcome of the sentencing proceedings. The factors said to render the present case exceptional were submitted not to be relevant to the exercise of the Court's discretion to admit the new evidence, especially since they were all taken into account by the sentencing judge. Thus, Ms Donnelly's affidavit and the new material should not be admitted and no miscarriage had been demonstrated.

Consideration - ground 1

The applicant's first ground was that there was a "[m]iscarriage of justice resulting from the absence of psychiatric evidence in the sentencing proceedings".
As explained above, the affidavit of Ms Donnelly, with the annexed medical records and report of Dr Furst, was not before the sentencing judge and was received conditionally by this Court so that the question of whether there had been a miscarriage of justice could be considered.
The general approach to the reception on appeal of evidence not before the sentencing judge was addressed in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25. The High Court (French CJ, Kiefel, Bell, Gageler and Gordon JJ) held, at [10]: "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)
As the High Court indicated, a number of more specific principles are relevant on an application for leave to appeal against sentence that involves the reception of fresh or new evidence. These principles include: 1. In criminal litigation, parties are generally bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh or new evidence: Khoury v R [2011] NSWCCA 118 at [104] (Simpson J, Davies J and Grove AJ agreeing); 209 A Crim R 509 (Khoury). 2. Notwithstanding the requirement for finality in litigation, where injustice results from error in the sentencing process, the injustice ought to be remedied: Khoury at [105]. 3. Where evidence not before the sentencing judge is sought to be adduced and that evidence establishes facts or circumstances that existed at the time of sentencing but were not known or were imperfectly understood at that time, then, where the interests of justice have so dictated, the additional evidence may be admitted in order to correct the misunderstanding: Khoury at [113], R v Ashton [2002] NSWCCA 498 at [10] (Howie J, Buddin J agreeing); 137 A Crim R 73 (Ashton). The justification for this is that, although, on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances: Khoury at [113]. 4. A miscarriage of justice may be demonstrated in exceptional circumstances where it can be shown that there was most compelling material available that was not used or understood: Zreika at [81] (Johnson J, McClellan CJ at CL agreeing). 5. The decision whether to admit the fresh or new evidence is discretionary and is to be exercised having regard to factors including that: 1. caution must be exercised, in the admission of fresh or new evidence, on an application for leave to appeal against a sentence, and a proper basis for its admission must be established: Khoury at [117]; Ashton at [11]; 2. the circumstances of, and any explanation for, the non-production of the evidence at the sentencing hearing (for example, a deliberate decision on the part of the applicant or his or her legal representatives, ignorance in the applicant of the significance of the evidence resulting in its not being communicated to the legal representatives, or incompetent legal representation): Khoury at [121]; 3. the potential for the evidence to have affected the outcome at first instance: MM v R [2016] NSWCCA 235 at [90] (Johnson J, Bathurst CJ and R S Hulme AJ agreeing), Khoury at [121]; and 4. the fact that the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted: Khoury at [121].
Applying those principles, the applicant's contention that the absence of the psychiatric evidence should be found to have led to a miscarriage of justice in respect of his sentencing, should be rejected for a number of reasons.
First, the applicant pleaded guilty in the Local Court on 15 March 2017. His legal representatives would have known at that time that evidence should be obtained for the purpose of a sentence hearing. On 7 April 2017, the applicant was directed to serve any material upon which he relied by close of business on 1 June 2017 for the sentencing hearing on 6 June 2017. That allowed his legal representatives approximately a further eight weeks from that time to obtain any relevant reports and documentation. There was no evidence why those representatives chose to obtain a psychologist's report rather than a psychiatrist's report. Nonetheless, it is obvious that the applicant's representatives decided that his case should be presented before the sentencing judge by way of a psychologist's report.
There was no evidence that a report from a psychiatrist could not be obtained in time. Nor was there any evidence that relevant records from Justice Health or Headspace could not be obtained by the usual processes. There was also no evidence explaining why these records were not, or could not be, obtained between March and June 2017. In these circumstances, and absent some other injustice, there is no reason to depart from the general position that the applicant is bound by the manner in which his case was presented at first instance, and he should not be permitted to attempt to enhance his case on appeal by adducing new evidence.
Secondly, while it is correct that the applicant's legal representatives in the sentencing proceedings did not tender a report from a psychiatrist, there was substantial evidence of the applicant's psychiatric condition in both the PSR and the report of 5 June 2017 of the psychologist, Kerry Watson, who had assessed the applicant on 27 May 2017.
The PSR referred to a "probable diagnosis of schizophrenia due to his age" when the applicant was 14 years old and his being medicated. It also recorded that ten months before the report, that diagnosis of schizophrenia was confirmed and he was placed on another medication regime. It was noted that the applicant reported a history of non-compliance in relation to medication but since his admission into custody he had been compliant.
The psychologist's report, tendered by the applicant, was more detailed in relation to the applicant's mental health issues and covered: 1. the applicant's "very bad" childhood in war-torn Iraq; 2. his relocation to Australia where his "family environment … was largely devoid of the continuity, consistence, and predictability, in addition to safety and security that typically determines an individual's healthy development of emotional functioning"; 3. his father's physical aggression, schizophrenia, criminal activity, incarceration, drug use, and employment of the applicant as a drug runner; 4. the applicant's difficulties adjusting to school and his "very ugly" adolescence; 5. under the heading "Medical/Psychiatric History": 1. the applicant's emotional turmoil and anguish, regular physical beatings, exposure to criminal conduct and drugs and anger management problems; 2. his history illustrative of the diagnostic features of Conduct Disorder, characterised by "a persistent history of multiple problem behaviours, violations of rules, antisocial behaviour, emotional maladjustment manifested in difficult temperament and oppositional behaviour, impulsiveness, mood disturbance, expansive thinking; and low self-esteem"; 3. at the age of 16, his diagnosis of "schizophrenia generally dominated by hallucinations of the auditory variety although he also experienced visual hallucinations" that was stabilised with Risperidone for 12 months before the applicant ceased his medication against medical advice. The applicant recounted "persistent auditory and visual hallucinations" after cessation of the medication up until he was medicated again in custody; 4. the applicant's severe instability of mental health without antipsychotic medications; 5. in September 2016, his assessment as suffering from schizophrenia and depressive symptomatology when he was prescribed Zyprexa, which has reduced but not eliminated the ongoing experience of auditory and visual hallucinations; 6. the decline in his mental state after he lost his job in 2015 and his feeling depressed and anxious all of the time in custody since 2016; 1. under the heading "History of Substance Abuse & Addictions", the applicant's non-consumption of alcohol but abuse of a variety of illicit and prescription drugs from about the age of 16; 2. under the heading "Current Mental Health": 1. his below average intelligence; 2. the fact that "his thought content revealed paranoia, and auditory and visual hallucinations" and his "judgment and insight appeared to be poor"; 3. in relation to auditory and visual hallucinations - his symptomatology being "consistent with a diagnosis of Paranoid Schizophrenia in that his auditory hallucinations are centred on: a pervasive distrust and suspiciousness of others; and suspicion, without sufficient basis, that others are conspiring to exploit, harm and deceiving him"; 4. his mild depressive symptomatology, exhibited signs of elevated stress and anxiety in his mood and affect, sleep disturbances, and feeling of guilt and regret; 5. his drug abuse and addiction, where the applicant attributed his criminal conduct to "being wasted on Xanax and not thinking normal"; 6. his psychometric assessment, in which he scored in the mild range for depression, the moderate range for anxiety and the severe range for stress.
The psychologist's report also included her opinion, which was relevantly as follows: "[The applicant] is clearly a very troubled young man that is suffering with a plethora of mental health issues including Schizophrenia, mild depressive symptomatology, and drug addiction. [His] Schizophrenia is generally dominated by hallucinations of the auditory variety which are persistent and of a paranoid nature. … The presence of Schizophrenic symptomatology and drug abuse of this nature would without doubt serve to severely compromise the individual's logic and strategic thinking, impair judgment and understanding of abstract concepts, diminish the ability to exercise restraint, and reduce the individual's comprehension of consequences. [The applicant] has accurately recognized the seriousness of his criminal conduct and the dire implications of his drug abuse. He has accurately identified that his mental health is particularly susceptible to the effects of drugs and he agrees that he requires therapeutic intervention and rehabilitation in order to effectively address his propensity to abuse drugs. I am of the opinion that [the applicant] is genuinely remorseful. …"
The psychologist went on to give some recommendations for psychiatric treatment, counselling and rehabilitation.
It can also be noted that it was conceded by the Crown, as recorded by Bennett SC DCJ at page 11 of his remarks on sentence, that the applicant did have a "mental health issue" and there does not appear to have been any dispute that this mental health issue was as detailed in the psychologist's report.
It was not submitted on behalf of the applicant that there were errors or significant omissions in the psychologist's report. On my review of Dr Furst's report and taking into account, in particular, the opinions of Dr Furst identified in pars 52 to 58 of the applicant's written submissions, I am satisfied that there was nothing of substance in that report which was inconsistent with, or materially added to, what had been before the sentencing judge by way of the psychologist's report and the PSR.
In the light of all these circumstances, I am not persuaded that, at the time of sentencing, there were pertinent matters relating to the applicant's psychiatric condition that were not sufficiently known or understood for the purposes of the sentencing hearing. Nor was there most compelling material available that was not used or understood. The applicant has not established that the sentencing proceeded on an erroneous view of the factual circumstances.
Accordingly, I do not accept that the applicant has established that there was an injustice, or a miscarriage of justice, requiring a remedy on this application for leave to appeal, as a result of his legal representatives supporting his case on sentencing with the psychologist's report rather than a psychiatrist's report.
Thirdly, the applicant submitted that it was "clear that the absence of supporting psychiatric material affected his Honour's sentencing in respect of the three offences". This was said to be based upon the fact that his Honour had indicated that he could give little weight to the information concerning the appellant's psychiatric condition because it was hearsay and that he did not entirely agree with the psychologist's assessment as she had only assessed the applicant on one occasion with very limited psychometric testing.
The potential for the evidence to have affected the outcome at first instance is a relevant consideration in determining whether to admit new evidence.
In the present case, however, I do not accept that Dr Furst's report and the medical notes would have been likely to lead to any materially different outcome. Although the learned sentencing judge did note the absence of Justice Health records and the fact that the applicant's diagnoses were based, at least to some extent, on his own reporting, his Honour's reasons disclose that: 1. he accepted, as conceded by the Crown, that it was clear that the applicant did have a mental health issue: remarks on sentence (ROS) p 11; 2. he reached his conclusions "giving full weight to the opinions of the psychologist" and "upon what has been attributed to [the applicant] in the pre-sentence report and the psychologist's report": ROS p 13.
In this context, it was also submitted that his Honour had not accepted the psychologist's evidence and it was implied that he would have accepted the evidence of a psychiatrist. Support for the submission was said to be found in the two comments of the sentencing judge.
The first comment was (at ROS p 10): "Tendered in his case is a psychologist report. I indicated in the course of the argument that some of the observations therein were generous. I do not agree entirely with what the psychologist has had to say. The psychologist assessed him on one occasion with very limited psychometric testing."
I note that immediately after this passage, the sentencing judge accepted that it was clear that the applicant had a mental health issue. Reading the judge's remarks on sentence as a whole it appears to me that the particular areas of disagreement related to the psychologist's statement that the applicant had "accurately recognised the seriousness of his criminal conduct" and was "genuinely remorseful". The sentencing judge had commented (ROS p 8) that the PSR should be read in conjunction with the psychologist's report so that comparisons and contrasts may be drawn. One problem area in the PSR was identified in the remarks on sentence at pp 9-10 as follows: "A matter of concern is his attitude to the offending. I will quote from the report: 'In relation to the offences now before the Court, [the applicant] disputed almost all of the agreed facts. He denied the claims of him trying to sell illicit substances and instead attempted to minimise his actions and cast aspersions on the victim through claiming that he is a well-known drug dealer. He commented that he had been under the influence of drugs and lost his temper as he alleged that he had warned the victim about dealing drugs, particularly where children were about. He denied assaulting the victim, however, admitted to putting the "Replica" gun to his temple to scare him. The offender stated that he 'regretted' his actions and remarked that he would not engage in this behaviour again. In relation to the other victim who was 17 years old he was able to display a basic level of insight as to how this young victim may have felt, however indicated that the primary victim of the offence would not have been affected (as I see) in any manner"."
In the light of this material, the sentencing judge's findings that the observations of the psychologist concerning the applicant's remorse and appreciation of the seriousness of his criminal conduct "were generous", and that he did not entirely agree with the psychologist, were open and understandable. They do not establish that he rejected the psychologist's report, apart from the comments concerning the applicant's remorse and recognition of the seriousness of his conduct.
I also note that Dr Furst does not express the same opinions as Ms Watson concerning remorse and recognition of the seriousness of the conduct. Thus, even if Dr Furst's report had been before the sentencing judge, it would not follow that there would have been any different result.
The second comment was (at ROS p 12): "It was said that I should give full weight to the opinions offered by the psychologist that come to the view that he lacked the capacity for judgement and an appreciation of the consequences of his conduct. I do not believe the proposition as to be so simply stated."
A proper reading of these comments in the context of the remarks on sentence as a whole and the psychologist's report does not support the applicant's contention. In my view, in this passage, the sentencing judge was not rejecting the psychologist's report or opinions, in whole or in part. What he was rejecting was the proposition that the psychologist had come to the view that the applicant simply "lacked the capacity for judgment" and similarly "lacked … an appreciation of the consequences of his conduct" (ROS p 12). What the psychologist had said was not as simple. Ms Watson opined at p 7 of her report: "The presence of Schizophrenic symptomatology and drug abuse of this nature would without doubt … impair judgment … and reduce the individual's comprehension of consequences."
The psychologist's opinion was considerably more nuanced and balanced than the somewhat unsubtle submission that his Honour was apparently considering. Further and in any event, the sentencing judge reached his conclusions concerning this submission "giving full weight to the opinions of the psychologist" (ROS p 13).
Fourthly, to the extent that the report of Dr Furst, and the medical records from Justice Health and Headspace, cast additional light on the applicant's mental illness, I am not satisfied that such light added anything of substance to the material before the sentencing judge. Furthermore, even if matters of greater substance were disclosed (which I do not accept is the case), that would not dictate that the evidence should be admitted, especially in the absence of some clear demonstration that the additional information would have been likely to have led to materially different sentences being imposed.
Fifthly, the applicant submitted that this matter fell into the "exceptional" category because of the applicant's young age, his long history of schizophrenia and deprivation, and disturbed upbringing, which were said to reduce his moral culpability. These were, however, all known and considered in the sentencing proceedings. The nature of the first attempted robbery offence and the second attempted robbery offence and the applicant's unwillingness or inability to acknowledge the seriousness of his conduct in relation to them were also taken into account by the sentencing judge. None of these factors provides any grounds for admitting the new evidence in this case. Moreover, given that the applicant pleaded guilty in respect of all the offences, it is of no particular relevance that the first attempted robbery offence was based on identification and that neither party referred to the strength of the Crown case. Those considerations do not provide any support for the applicant in relation to this ground of appeal.
Finally, it was submitted that the "extreme nature" of the applicant's mental illness was overlooked by his counsel and subsequently by the Court due to the absence of relevant records and reports. It appears that the applicant's schizophrenia was said to be extreme in the sense that he "suffered a crippling mental illness from a young age punctuated by both auditory and visual hallucinations". The problem with this submission is that it fails to take into account that the sentencing judge expressly noted that the Crown had conceded that the applicant had a mental health issue (ROS p 11), that the diagnosis was of schizophrenia which included auditory and some visual hallucinations (ROS pp 10 and 11) and that he had been so diagnosed when he was about 14 (ROS p 10). Accordingly, there is no basis for accepting the applicant's submission in this regard.
For all of these reasons, individually and together, in my view, there was no miscarriage of justice as a consequence of the new evidence not being before the Court in the sentence proceedings.
As it was necessary to understand what the new evidence was in order to determine whether there had been any miscarriage of justice, I would admit that evidence, but only for the purpose of considering this ground of appeal.
The applicant's first ground of appeal should be rejected.

Ground 3

Since the proposed third ground involves an allegation of a specific error in sentencing, I shall deal with that ground before addressing ground 2, which, in effect, raises the contention that the aggregate sentence was manifestly excessive.
Proposed ground three was that "[h]is Honour erred in failing to take into account the [applicant's] background of deprivation."

Submissions

In essence, this ground was based upon the following passage from the remarks on sentence at pp 12-13: "It was said that I should give full weight to the opinions offered by the psychologist that come to the view that he lacked the capacity for judgment and an appreciation of the consequences of his conduct. I do not believe the proposition as to be so simply stated. On the one hand the offender would rely no doubt upon the challenging experiences in the first eight years of his life in Iraq, where according to representations attributed to him he was limited in his opportunities to move about and burdened by the ever-present sound of gunfire and bombs exploding. Then he came to this country, where opportunities abound, to fall under the influence of his father who introduced him to drug use and criminality which has resulted in his father's incarceration, all of which must have informed the offender that there were consequences for misconduct of this type, and he must have been aware that to produce a weapon, even though an imitation weapon, to threaten another member of the community in an attempt to rob them would have been likely to engender fear in them. Moreover, he must have appreciated that to strike the second victim in the way that he did was wrong and was likely to result in at least some level of injury."
The applicant submitted that these observations were contrary to judicial recognition of the effect of deprivation and exposure of a young person to violence and drugs, and "how or whether" these factors may impact on the person's behaviour and criminality, thus reducing their moral culpability. The applicant referred to various authorities including Bugmy v Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy). It was then contended that: "it is accepted that the weight to be given to social disadvantage requires individual assessment, but it is submitted that the applicant's personal history of deprivation is at the extreme end and there is a clear nexus between his offending and his history of violence and exposure to drugs from a young age."
In addition, the applicant submitted that he was further isolated in Australia where he did not understand the social norms and initially spoke no English.
In brief summary, the Crown submitted that the sentencing judge had taken those matters into account appropriately and that the approach adopted was consistent with the principles in Bugmy.

Consideration

I have already explained, when considering the first ground of appeal, why the applicant's understanding of the sentencing judge's opening remarks, in the paragraph from the remarks on sentence on which the applicant relies, is somewhat misconceived.
Further, when the remarks on sentence are read as a whole, it is clear that the sentencing judge has taken into account the effect of deprivation and exposure to violence and drugs endured by the applicant as a young person, and has considered how these factors impacted on his behaviour and reduced his moral culpability. For example at pp 12 and 13 of the remarks on sentence, his Honour said: "There are contrasts to be drawn between what is contained in [the psychologist's] report and the pre-sentence report, but read together it seems to me that they support a finding that the offender has had a challenging life through his formative years, which has no doubt contributed to the normalisation or the acceptability of misconduct of the type upon which he has engaged across the range of offending that has brought him before the Court, including the instant offences. … I agree that he is not an entirely suitable character for general deterrence, but I am persuaded drawing upon the facts and circumstances of the offending and giving full weight to the opinions of the psychologist… That he has sufficient awareness and understanding to attract a measure of weight to this aspect of the sentencing exercise. Of course, there is the counterbalance that one must bring to bear and that is the need to protect the community from someone who might not be sufficiently mature to exercise the level of control that will prevent him from committing serious crimes such as this."
The comments concerning "normalisation" of offending for the applicant as a result of his deprivation and exposure to violence and drugs reflect an application by the sentencing judge of the principles in Bugmy in relation to moral culpability. The later references to the fact that the applicant was not an "entirely suitable character for general deterrence" also indicate that the sentencing judge took into account his upbringing and exposure to violence and drugs in relation to the separate consideration of the extent to which the principle of general deterrence should be reflected in the sentence in the applicant's case.
In my view, the sentencing judge did not fail to consider whether and to what extent the applicant's deprivation and exposure to violence and drugs reduced his moral culpability, and did not thereby fall into error as contended under proposed ground 3.
Since that ground has been the subject of submissions and considered, it is appropriate to grant leave to the applicant to amend the application for leave to appeal to include ground 3. Notwithstanding this, for the reasons given above, I would reject any appeal on this ground.

Ground 2

The applicant's second ground of appeal was that the "[s]entence in respect of attempted armed robbery of [victim 1], (Matter No. H61633130 Seq 1) is Manifestly Excessive".
This ground is misconceived. Although indicative sentences may be a guide to whether error is established in relation to the aggregate sentence, it is not possible to appeal against an indicative sentence: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 (JM) at 40 (R A Hulme J, Hoeben CJ at CL and Adamson J agreeing). Further, even if an indicative sentence were assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: JM at 40.
The applicant submitted in respect of this second ground, at par 80(xix), that: "…, whilst his honour imposed an aggregate sentence for the three offences, it is submitted that the overall sentence be reduced proportionally in view of the excessive sentence indicated in respect of the offence against [victim 1]."
On this basis, ground 2 could be treated, in substance, as raising the contention that the aggregate sentence was manifestly excessive. If this approach is adopted, the relevant principles include that, in order to establish that a sentence is manifestly excessive: 1. it must be shown that the sentence is one that was simply not open to the judge to impose in the exercise of the sentencing discretion: El-Sayed v R [2018] NSWCCA 250 at [41] per R A Hulme J (Basten JA and Hamill J agreeing); 2. it must be "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 200 CLR 321 at [6] and [22]; [2000] HCA 54 (Dinsdale); Baladjam v R [2018] NSWCCA 304 (Baladjam) at [259] (Bathurst CJ, Hoeben CJ at CL and Fagan J agreeing); 3. it is not sufficient that an appellate court may have a different view from the sentencing judge as to the appropriate sentence: Lowndes v The Queen (1999) 195 CLR 665 at [15]; [1999] HCA 29; Baladjam at [259], and, intervention is warranted only when the difference in view is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: Dinsdale at [6]; Wong v The Queen (2001) 207 CLR 584 at [58]; [2001] HCA 64; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [59]; [2010] HCA 45; Baladjam at [260]; 4. the maximum penalty for the offence acts as a legislative guidepost for an appropriate sentence: Muldrock v R (2011) 244 CLR 120 at [27]; [2011] HCA 39. The maximum penalty for the first attempted robbery offence was 25 years' imprisonment.
The sentencing judge's findings in relation to the circumstances of the first attempted robbery offence, as well as the other two offences, have been set out above in detail, as have his Honour's findings concerning the objective seriousness of the offences, the applicant's criminal history and his personal circumstances, the pleas of guilty, and other relevant matters. None of the judge's findings has been challenged in this application for leave to appeal.
On its own, the indicative sentence for the first attempted robbery offence can be seen as towards the upper end of the range of appropriate sentences, even though the maximum penalty for such an offence is 25 years. However, factors including that the first attempted robbery offence was assessed at sentencing as being "of the less serious type", and that the victim was uninjured and no theft in fact occurred, together with the applicant's subjective factors and all the other relevant circumstances, do not, in my view, justify the conclusion that, if the indicative sentence had been the actual sentence imposed in respect of the first attempted robbery offence, it was simply not open to the judge to impose in the exercise of the sentencing discretion. Nor was the indicative sentence inconsistent with the range of available sentences under the guideline judgment in Henry, having regard to the sentencing judge's conclusion that any differences were at best marginal and the comments of Simpson J (as her Honour then was) in R v Harris [2011] NSWCCA 105 at [93]-[94].
Moreover, even if the indicative sentence for the first attempted robbery offence were manifestly excessive, the aggregate sentence was not. That conclusion is based on all the circumstances of the three offences, including the much greater seriousness of the second attempted robbery offence and the different criminality involved in, and the seriousness of, the firearm possession offence and the maximum penalties as well as all the mitigating factors and other matters, as found by the sentencing judge and in the material before him. Having regard to all of the matters raised in the applicant's submissions, including in particular the factors mentioned in pars 80(i) to (xix) in the written submissions, I am unpersuaded that the aggregate sentence of 6 years with a non-parole period of 3 years and 6 months was simply not open to be imposed in the exercise of the sentencing discretion. It does not, in my view, bespeak a misapplication of principle. Nor was it unreasonable or plainly unjust.
Accordingly, the applicant has not established that the aggregate sentence was manifestly excessive. The second ground of appeal should be rejected.

Conclusions

For these reasons, in my view each of the grounds of appeal should be rejected. Nonetheless, as the grounds of appeal were arguable and have been argued, leave to appeal should be granted but the appeal should be dismissed.
In these circumstances, I propose that the Court should: 1. Grant leave to the applicant to read the affidavit of Paris Donnelly sworn 22 November 2018 for the purpose of considering ground 1. 2. Grant leave to the applicant to amend the application for leave to appeal to include ground 3. 3. Grant leave to the applicant to appeal. 4. Dismiss the appeal.

Amendments 12 June 2019 - Cover sheet - Judges' paragraph references. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2019

The evidence

The applicant sought to read the affidavit of Paris Donnelly sworn on 22 November 2018 which did no more than annex copies of: 1. the applicant's Headspace records for the period from 22 June 2015 to January 2016; 2. the applicant's Justice Health New South Wales records from 6 June 2015 to 22 November 2018; 3. a report of Dr Furst, forensic psychiatrist, of 29 October 2018.
The Crown objected to this affidavit being read and the material annexed being admitted into evidence. This issue was the subject of written submissions by both parties.
In these circumstances, the Court indicated that it would receive this evidence conditionally for the purpose of considering the first ground of appeal and would rule on the admissibility of the affidavit and the annexed documents in its judgment. Receiving evidence conditionally, in a case such as the present, is a well-established way to proceed: see for example R v Bradley [2004] NSWCCA 88 at [12].

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (4)

Cases Cited (30)