Nguyen v R [2025] NSWCCA 42 | Case summary | Zoe

NSWNSWCCA

Nguyen v R

[2025] NSWCCA 42

Court of Criminal Appeal (NSW)|2025-03-26|Before: Davies J at [1]Dhanji J at [2]Huggett J at [57]

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2025-03-26

Before

Davies J at [1]Dhanji J at [2]Huggett J at [57]

Catchwords

CRIME – appeals – appeal against sentence – cultivation
of prohibited plants by enhanced indoor means – pervert
the course of
justice – whether denial of procedural fairness – where sentencing

Source

Original judgment source is linked above.

Catchwords

CRIME – appeals – appeal against sentence – cultivationof prohibited plants by enhanced indoor means – pervertthe course ofjustice – whether denial of procedural fairness – where sentencingjudge rejected evidence in psychologist’sreport – where noindication issue taken – psychologist’s conclusion a matter ofspeculation – inherentlyimplausible – no practical injustice– leave to appeal granted – appeal dismissed

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Nguyen v R [2025] NSWCCA 42

Hearing dates: 21 February 2025

Date of orders: 26 March 2025

Decision date: 26 March 2025

Before: Davies J at [1]
Dhanji J at [2]
Huggett J at [57]

Decision: (1) Leave to appeal is granted.
(2) Dismiss the appeal.

Catchwords: CRIME – appeals – appeal against sentence – cultivation of prohibited plants by enhanced indoor means – pervert the course of justice – whether denial of procedural fairness – where sentencing judge rejected evidence in psychologist’s report – where no indication issue taken – psychologist’s conclusion a matter of speculation – inherently implausible – no practical injustice – leave to appeal granted – appeal dismissed

Before the sentencing judge the Crown did not object to the admissibility of the report of Dr Pollicina or require the author for cross-examination. Nor did the Crown tender any evidence to contradict any opinion expressed by Dr Pollicina. The Crown’s written submissions were filed prior to the receipt of Dr Pollicina’s report and did not, consequently, address Dr Pollicina’s report.
In oral submissions the Crown did not make a submission directly challenging Dr Pollicina’s opinion about the nexus between the applicant’s mental health and offending behaviour, and the related diminution in the applicant’s moral culpability. Nonetheless, in this Court it was submitted that the opinion was challenged. This was on two bases: firstly, the position taken by the prosecutor below with respect to the applicant’s financial motivation in committing the offences; and secondly, a submission made regarding the applicant’s psychological condition.
With respect to the applicant’s motivation, the Crown prosecutor cross-examined the applicant’s wife with a view to adducing evidence to establish the offences were committed out of greed rather than financial necessity. In oral submissions on behalf of the Crown it was put that the evidence was consistent with the applicant and his wife having become accustomed to “a certain lifestyle”. It was submitted on behalf of the respondent in this Court that the effect of this cross-examination and the related submission was that the Crown had taken issue with the presence of any nexus between the applicant’s mental health conditions and his offending.
In support of the above contention it was submitted that the commission of the offences out of greed was inconsistent with impulsivity borne out of a connection between any mental health conditions and the offending conduct. I do not agree. Greed is a motivating factor and was established to be so in this case. Impulsivity is a measure of reduced resistance to motivating factors. Impulsiveness is not a binary concept. Some offences may be more impulsive than others. At one end of the scale might be an impulsive response to a slight, resulting in immediate personal violence. Offending such as that here can be seen to involve a more deliberate calculus, a decision being made to commit the offence to achieve the particular objective, greed. Nonetheless, a degree of impulsivity (which might also be described as a degree of recklessness or impairment of judgment) can, subject to acceptable evidence of the matter, be understood as having impacted that decision-making process.
The second basis on which it was submitted in this Court that the causal connection alleged by the applicant was challenged by the Crown was the following submission made by the Crown prosecutor to the sentencing judge:

Before dealing with the applicant’s complaint and proposed remedy, it might be observed that it was not submitted that the sentencing judge erred in failing to accept the unchallenged evidence of Dr Pollicina. Indeed, the applicant’s written submissions are explicit in stating that he “does not rely on the factual merit of his case”. It is helpful in dealing with the proposed ground to understand why a complaint as to the rejection of the evidence could not be sustained.
The roles of the judge, prosecution and defence in the sentencing process are distinct. While the parties decide how they will conduct their cases, including as to the evidence to be led, “that does not bind the judge, except in the practical sense that the judge’s capacity to find facts will be affected by the evidence and the admissions”: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [31]. A sentencing judge is, therefore, not bound to accept particular evidence led by one party, even in the absence of challenge, or even where there has been a concession made by a party: DL v The Queen (2018) 266 CLR 1; [2018] HCA 26.
While it is for the judge to decide what evidence is to be accepted, a decision to reject uncontested evidence cannot be made capriciously. In the context of expert evidence, there are a large number of authorities dealing with the obligation, or otherwise, to accept uncontested opinions given by appropriately qualified experts. For present purposes it is sufficient to observe that a fact finder is not entitled to reject uncontested expert evidence without some rational basis for doing so: see eg, R v Rodriguez [2010] NSWSC 198; Reberger v R [2011] NSWCCA 132; Hone v Western Australia [2007] WASCA 283; 179 A Crim R 138; R v Klamo (2008) 18 VR 644; [2008] VSCA 75; Da-Pra v R; R v Da-Pra [2014] NSWCCA 211. The most common basis on which an expert opinion might be rejected is where the facts on which the expert relied have not been satisfactorily established. That was the case here.
Dr Pollicina’s reasoning can be summarised as follows:
the applicant disclosed a childhood involving parental neglect;
there is extensive specialist literature pointing to such neglect being a form of child abuse that “can have lasting physical and psychological effects on a person” including various symptoms as set out by Dr Pollicina;
many of these symptoms “appear to have been present” on assessment of the applicant by Dr Pollicina (who first saw the applicant in June 2024);
those symptoms “may well have been in existence for a lengthier period of time earlier to and throughout his offending conduct” (in 2020 and 2021).
The statement that the symptoms “may well have been in existence” for a longer period is, on its face, speculative. That is particularly so in circumstances where the applicant’s psychological state was very likely, perhaps inevitably, affected by the fact that he had been charged and was facing sentence (presumably with an expectation of imprisonment) for the offences. Nor was there any other evidence tendered in the sentencing proceedings supporting the presence of any issue with respect to the applicant’s mental health at the time of the offending conduct. Yet the presence of those symptoms at an earlier time was an essential step in Dr Pollicina’s reasoning to the conclusion that the applicant was suffering from mental health conditions arising from parental neglect at the time of the commission of the offences.
It was, given the above, open to the sentencing judge to reject the evidence of Dr Pollicina with respect to the impact of childhood neglect and the submission based on it. I am conscious that my reasons for this conclusion differ from those of the sentencing judge. With respect to the reasons his Honour gave for rejecting the opinion, it is not self-evident, for the reasons already discussed, that miscalculation or misjudgment in the context of a financial motivation is inconsistent with the operation of some psychological impairment impacting that judgment. Nor was there any evidence which provided a basis to conclude that the applicant’s intelligence or education militated against the existence and potential impact of a relevant psychological condition. Experience suggests that people with a range of intellects and capabilities may be afflicted by debilitating mental conditions. As to the length of time over which the offences occurred, while this suggests the offences were not impulsive, as already discussed, this is a matter of degree. While the applicant’s conduct over a period of months does not fit easily within the ordinary use of the word “impulsive”, it is nonetheless possible to understand the applicant’s actions in terms of him behaving more impulsively, or perhaps recklessly, than he otherwise might as a result of a degree of impairment in his functioning.
However, for the reasons I have given, whatever issue may be taken with the reasons of the sentencing judge, it was open for him to reject the conclusion of Dr Pollicina.

Evidence might be evidence of facts, or evidence of an opinion (usually an expert) based on facts. Basten JA in O’Neil-Shaw was dealing with the former. In that context, the quality of “implausibility” of a fact (viewed in the context of the whole of the evidence) is readily capable of assessment, albeit reasonable minds might differ as to the result of that assessment. Basten JA was not dealing with evidence of an opinion where rejection might be based on the implausibility of the conclusion, or, more likely, the facts or reasoning on which the conclusion was based.
In the present case it was not “inherently implausible” that the applicant could have been, as a result of his upbringing, suffering from a psychological condition impacting him at the time of his offending so as to make a causal contribution to that offending. That was, having regard to his description of his upbringing, and the relevant literature, a possibility. But the conclusion that he in fact was suffering such a condition was, as discussed above, a matter of speculation. Thus, while the fact was not “inherently implausible”, it was “inherently implausible” that this conclusion could be reached based upon the evidence before the court. As Basten JA said in the same paragraph relied on by the applicant, “[s]tatements of general principle must be understood in their context”. I do not regard what was said in O’Neil-Shaw as dictating a conclusion that there was a denial of procedural fairness in this case.
It is necessary then, to evaluate the applicant’s complaint against the minimum requirements of procedural fairness as they applied here. Procedural fairness does not exist in a vacuum, or as an end in itself. Rather the test is one of “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34], [37].
In the context of sentencing proceedings, in Weir v Regina [2011] NSWCCA 123, Garling J (with whom Macfarlan JA and Johnson J agreed) made the following observations, at [64]-[67]:

The test of practical injustice has the result that cases involving complaints of a denial of procedural fairness will inevitably turn on the particular facts of the case. For example, the present case can be contrasted with the recent decision of McLaughlin v R [2025] NSWCCA 13 relied on by the applicant. In that case, while also involving the opinion of a psychologist, issue was joined between the applicant and the Crown, not as to the existence or relevance of a diagnosed condition, but rather as to the weight it was to be given (see at [100]). The sentencing judge in the course of the proceedings acknowledged the Crown’s concession that the condition was both present and had a role to play, with the argument limited to the degree to which it should figure in the sentencing exercise. Implicit in the reasons of N Adams J is the possibility that, had counsel not been led to understand the submission had been accepted, it would have been open to argue for the conclusion on the available evidence (see at [125]).
Consistent with the need to determine the question of “practical injustice”, in the course of argument, the applicant’s counsel was asked what course the applicant might have taken had the sentencing judge indicated his doubts as to the submission now said to have been unfairly rejected. No sustainable argument was put as to how the sentencing judge might have been properly persuaded to accept the opinion based on the available evidence. The most that could be said was that the applicant might have applied for an adjournment in order to provide evidence supporting the conclusion.
The question then is, did the denial to the applicant of the opportunity to seek an adjournment amount to practical injustice? In my view it did not. The applicant had the opportunity to put his case before the sentencing judge. He did so. Having regard to the inadequacy of the reasoning in the report he could not have expected the conclusion with respect to the asserted causal connection to have been accepted. Further, there is nothing in the evidence before the sentencing judge, or sought to be put before this Court, to suggest that the flaw in the reasoning was capable of being rectified. Had the psychologist been able to provide a foundation supporting the existence of the relevant symptoms at the time of the offending, it can be expected that he would have done so. While it is theoretically possible that other evidence could have been obtained, that had not been done. There was nothing to suggest it could be done. To say that steps might have been taken which might have provided a foundation for the opinion does not suggest that had an adjournment been sought, it was likely to have been granted, or that, if granted, the applicant would have produced evidence supporting the opinion. This, to my mind, falls short of establishing the kind of practical injustice required.
I would reject the applicant’s sole ground.
Before leaving the issue, none of what has been said is to suggest that it would not have been preferable for the sentencing judge to have advised the applicant’s counsel of his scepticism with respect to the relevant opinion, despite the absence of challenge from the Crown. That it would have been preferable is, however, not the test. It is also to be borne in mind that in the context of a sentencing hearing, a sentencing judge will typically be assimilating a large volume of information. The complexities of particular issues, particularly in the absence of any focus by the parties on the subject, may not become apparent until later. Of course, if this occurs, it remains open to the judge to notify the parties of the issue and call for submissions, reconvening the court if necessary. But, for the reasons given above, the sentencing judge was not obliged to do so in this case: see also Richards v R [2023] NSWCCA 264 at [62]. There was no breach of the rules of procedural fairness.
Given the Court heard full argument I would grant leave to appeal but dismiss the appeal.

Nguyen v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

JUDGMENT

The Facts

Count 1

Count 2

Count 3

Proceedings on Sentence

The Crown material

The applicant’s material

Sentencing

Ground of appeal – the applicant was denied procedural fairness in respect of his Honour’s findings regarding his subjective case

The issue

No obligation to accept the evidence

A denial of procedural fairness?

Orders

Parties

Legislation Cited (4)

Cases Cited (8)

Cited By (5)