Rae v R

Consideration

In my opinion, it is possible and preferable to deal with Mr Rae's appeal to this Court without attempting to resolve the apparent conflict between him on the one hand and his former solicitor and barrister on the other hand concerning the issue of whether an adjournment of the sentencing proceedings should have been requested to enable medical evidence to be adduced.
As already noted, part of the material referred to by Ms Low in her affidavits, received in this Court on a provisional basis, was a report of Dr Matthew Hocking dated 15 March 2016. That report contained the following opinions: "Thank you for referring Ben to see me for assessment of his mental state and suggestions for further management. Ben is a thirty-two-year-old former telesales manager suffering from a complex combination of bipolar disorder - mixed episodes, a cluster of anxiety symptoms, dysthymia, ADHD and cannabis/amphetamine dependence superimposed on a background of cluster B personality vulnerabilities. Ben's bipolar disorder occurs against a background of a father also diagnosed with the same condition who committed suicide when Ben was aged seventeen. Ben's bipolar disorder is evidenced by mixed episodes characterised by 'highs' lasting between twenty-four to forty-eight hours coupled with 'lows' that can range from one to two weeks. Ben's 'highs' are characterised by an expansive mood, feelings of invincibility, a decreased need for sleep, excessive energy, excessive goal-directed behaviours, and disinhibited activities such as riding a bike at dangerous speeds. While Ben's 'lows' are characterised by lethargy, feelings of apathy and hopelessness, irritability, hyperinsomnia and morbid thoughts. Furthermore, Ben's cluster of anxiety symptoms and dysthymia include symptoms consistent with generalised anxiety and social anxiety as well as pervasive dysthymia including feelings of low self-esteem, shame and guilt. At present Ben denied suffering from a high or low mood in the context of his bipolar symptoms, rather stating his mood at present was more in his 'level' dysthymic state - feeling worthless, ashamed and with low self-esteem. Ben detailed consistent symptoms of ADHD including features of inattention, hyperactivity and impulsivity. His inattention was characterised by frequently losing items, a difficulty with focus and attention, poor planning and organisation, distractibility and procrastination. His hyperactivity was evidenced by excessive fidgeting, impatience, and butting into conversations. Finally his impulsivity was evidenced by impulsive spending and impulsive substance misuse. Ben's mood, anxiety and ADHD symptoms were all superimposed on a background of cluster B personality traits including antisocial traits and borderline personality vulnerabilities. His antisocial traits were evidenced by his extensive forensic history including charges for intimidation, shoplifting and larceny - offences which he states he has no remorse for; while Ben's borderline vulnerabilities were characterised by emotional instability, relationship instability a fear of abandonment, a history of deliberate self-harm and recklessness, a poor sense of self and transient paranoia. Ben's history of substance misuse first commenced at the age of seventeen characterised by a pattern of daily cannabis misuse almost immediately. Ben's cannabis dependence continued for the following fourteen to fifteen years however he stated that over the last ten months he has cut back his cannabis misuse as his abuse of methamphetamines took over. Ben first used crystal methamphetamines at the age of twenty-four however stated that at this time he only used it sporadically. Over the last two and a half to three years his methamphetamine misuse progressed quickly to heavy daily use smoking approximately 1g of crystal methamphetamines on a daily basis. Nonetheless he denied any intravenous use of substances and last used cannabis and methamphetamines three and a half weeks ago. He also admitted the recreational use of ecstasy, cocaine and hallucinogens however denied ever using any other illicit substances. Ben detailed a past psychiatric history of initially being diagnosed with ADHD when aged eight. Initially he was placed on dexamphetamine however as this led to an exacerbation of his emotions he was changed to Ritalin with good effect. Nonetheless Ben admits being variably compliant with Ritalin during his younger years and eventually chose to cease the medication himself when aged seventeen. He next sought help for a mental health condition when aged eighteen at which time he saw a GP who diagnosed him with major depression. He was trialled on Efexor and Avanza however once again was non-compliant with the medication. Over the last twelve years he has had three admissions to hospital due to depression as well as drug-induced psychosis and Ben states that during these periods he has been prescribed antidepressants as well as Seroquel. While he couldn't recall which antidepressants had been trialled once again he revealed that he was non-adherent to follow up and was not compliant with medication following his discharge from hospital. Other salient features of Ben's history include a family history of bipolar disorder in his father (who committed suicide) as well as major depression in his mother who once again committed suicide (when Ben was aged twenty-five). His paternal grandmother suffered from anxiety symptoms and he has two brothers who have misused illicit substances and who have extensive forensic histories (eg his younger brother is currently in prison after committing murder). Ben denied any personal past medical history, admitted allergies to bee stings however is not currently prescribed any medication. On assessment of his mental state, Ben presented as a young Caucasian man who was slightly overweight. He was casually dressed and neatly groomed. Ben was cooperative throughout the interview, easy to engage with good eye contact and a fair rapport established. Nonetheless he had a nervous manner with feelings of low self-worth. Ben's mood was dysthymic and anxious with a nervous and flat affect evident. There was no evidence of formal thought disorder, psychotic phenomena or perceptual disturbances. His insight was poor and his judgment also poor as evidenced by his non-compliance with medication and reliance on illicit drugs to cope with mental health symptoms. There was no evidence of cognitive impairment."
Mr Rae conceded that this report did not achieve the heights referred to in Abbott, in that it does not provide an explanation for Mr Rae's offending. However, he submitted that his longstanding anxiety, depression, borderline personality vulnerabilities and bipolar disorder, which led to three mental health hospital admissions in the period between 2004 and 2014, were significant to the sentencing exercise in at least two ways. First, Mr Rae's mental illness may render him an inappropriate vehicle for general deterrence and secondly, a custodial sentence may weigh more heavily upon him: see, for example, R v Hemsley [2004] NSWCCA 228 at [34] and [35].
It is apparent from his sentencing remarks that his Honour took account of Mr Rae's loss of his parents by suicide as well as his significant illicit drug problem. However, it is unsurprising in the absence of any evidence of his mental health challenges that his Honour made no reference to this at all. It is also apparent from the evidence of Mr Rae's former solicitor and barrister that they were aware, if only in a general sense, of his history of mental illness at the time of the sentencing proceedings. In the events that occurred, submissions were made on Mr Rae's behalf at the sentencing proceedings that included references to his diagnosis of borderline personality disorder and chronic depression and anxiety, among other things. However, in the absence of supporting medical opinion, Mr Rae's legal representatives were not in a position to make, and did not make, the submission now made in this Court about moderation of general deterrence or the extent to which a custodial term might weigh more heavily upon him than an offender without similar mental health issues.
Mr Rae contended in these circumstances that no regard was given to his mental health in the determination of his sentence and that this has resulted in a miscarriage of justice.
In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, the High Court referred to the following matters in the determination of appeals under s 6(3) of the Criminal Appeal Act 1912: "The determination of appeals under s 6(3) [9] Section 5(1)(c) of the CAA confers on a person convicted on indictment a right to appeal by leave of the Court of Criminal Appeal against the sentence passed on the person's conviction. Where leave is granted, the determination of an offender's appeal is governed by s 6(3): '[T]he court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.' [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: Abbott (1985) 17 A Crim R 355; Goodwin (1990) 51 A Crim R 328; Araya (1992) 63 A Crim R 123 at 129-130 per Gleeson CJ; Fordham (1997) 98 A Crim R 359 at 377-378 per Howie AJ; see also Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 395 per Gibbs CJ; [1986] HCA 26. [11] It is accepted, however, that the appellate court may receive evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. Evidence of this description is routinely received by the Court of Criminal Appeal on the limited basis that it may be taken into account in the event the Court comes to re-sentence. It is evident that the Court of Criminal Appeal treated the material tendered on the appellant's behalf as having been admitted on this limited basis." [Emphasis added]
Fresh evidence may be admitted without error being established where an applicant establishes that a miscarriage of justice has occurred by reason of incompetent or careless representation on sentence: R v Fordham (1997) 98 A Crim R 359 at 377-378. That is to be contrasted with the position "where a deliberate decision as to issues to be pursued is made" in which case "there is nothing unfair, and there will be no miscarriage of justice, in holding an accused to such a decision, even though it is conceivable (or might be thought by other advisers) that a different decision may have 'worked rather better'": R v Diab [2005] NSWCCA 64 at [19]; see also Ratten v The Queen (1974) 131 CLR 510 at 517 and R v Abou-Chabake [2004] NSWCCA 356.
In the present case, the decision to proceed to sentence before his Honour without seeking an expert medical opinion cannot strictly be characterised as a forensic decision in the sense that it involved a choice, made by Mr Rae's legal representatives on his behalf, between competing possibilities with associated but unpredictable advantages and disadvantages. It is difficult to detect the existence of any substantive disadvantage to Mr Rae that might, or could, have resulted from adjourning the sentencing proceedings for that purpose. This does not appear to me to be a case in which Mr Rae should be bound by a decision made by his legal representative if the sentencing tribunal can be shown to have been deprived, for whatever reason, of the significant advantage of having material before it that potentially informed a very significant aspect of Mr Rae's subjective case. Nor is this a situation in which Mr Rae is seeking to abandon the case on sentence that he ran before his Honour or to alter his course and run a substantially different case in this Court. Mr Rae's simple proposition is that, for whatever reason, he has lost the opportunity, or has been deprived of the chance, of a better outcome that was fairly open.
The principle advanced by Mr Rae would appear to derive inspiration from what was said by Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 at 395 as follows: "In a case such as the present, when there was no wrong decision of any question of law or other irregularity at the trial, and the verdict of the jury was not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the Court of Criminal Appeal can allow the appeal only if it considers that a miscarriage of justice has occurred by reason of the fact that the evidence now adduced was not called at the trial. Although many cases have provided a gloss on the words of s.6 and similar provisions, it is important to remember that the fundamental question is whether a miscarriage of justice has occurred, and that the principles that may be extracted from the authorities "should not ... be regarded as absolute or hard and fast rules": Green v. The King [1939] HCA 4; (1939) 61 CLR 167, at p 175. The circumstances of cases may vary widely, and it is undesirable to fetter the power of Courts of Criminal Appeal to remedy a miscarriage of justice. I respectfully agree with the statement of King C.J. in Reg. v. McIntee (1985) 38 SASR 432, at p 435, that 'appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand'. The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial…" [Emphasis added]
A situation not dissimilar to the present case arose for consideration by this Court in Pym v R [2014] NSWCCA 182. Fullerton J described the position there as follows: "[46] It is clear that counsel who appeared on sentence was in possession of evidence (being Dr Furst's first and second reports and the unredacted third report) which addressed the applicant's psychiatric condition at the time he committed the offences. It was not submitted that counsel's failure to tender the three reports (the third in its unredacted form) amounted to incompetence or that any close examination of counsel's advice or reasons he gave for the forensic decisions he made is called for on the question whether the sentence proceedings gave rise to a miscarriage of justice. [47] Counsel submitted that it was sufficient for the purposes of the appeal to establish that critical features of the applicant's psychiatric profile, explored by Dr Furst in the reports and foundational to his ultimate opinion that the applicant was in an altered state of consciousness at the time of the attack on Mr and Mrs Hicks, were not in evidence before the sentencing judge. Counsel submitted that since that evidence was available and relevant to sentence, to deprive the applicant of the opportunity to have that material considered in mitigation of sentence has been productive of a miscarriage of justice. [48] The Crown submitted that the decision not to tender the material was both explicable and appropriate in circumstances where the applicant had entered pleas of guilty and was averse to giving evidence. The Crown submitted that to rely upon the redacted material from Dr Furst's third report would have effectively traversed the applicant's pleas and that there was nothing in the first two reports that added anything material to the sentencing exercise. [49] It is necessary to examine Dr Furst's third report, in its unredacted form, and the fourth report that was tendered on the appeal in some detail. It is only by undertaking that exercise that the significance of what was not tendered can be assessed and the question whether a miscarriage of justice has been demonstrated can be meaningfully addressed. The first and second reports are not insignificant but the failure to tender them is not relied upon independently of the unredacted third report as constituting a miscarriage of justice."
Later in her reasons, Fullerton J said this: "[75] As the Crown emphasised, it is not for sentencing courts to decide what evidence should be adduced by the parties (see Madden v R [2011] NSWCCA 254 at [29]). Further, this Court, as a court of error, is not a forum for the revision and reformulation of the case presented at first instance (see Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [79]-[81]). However, in Zreika, Johnson J also observed (McClellan CJ at CL and Rothman J agreeing) that whilst the Court will not lightly entertain arguments that could have been advanced on sentence but were not, it may do so in exceptional circumstances where the Court is satisfied that compelling material was available but not tendered, or its significance not appreciated, and that a miscarriage of justice has resulted. [76] It is not necessary for this Court to resolve the question of the weight that might have been attributed by the sentencing judge to the unpresented psychiatric material. Neither is it for this Court to consider any question bearing upon the competence of counsel in failing to place that material before the sentencing judge when no ground of appeal makes that challenge. The sole question is whether the failure to place the entirety of the material relevant to the applicant's mental state before the sentencing judge has resulted in a miscarriage of justice. If that question is answered affirmatively, the second ground of appeal does not need to be considered. … [84] For my part, I am satisfied that in light of the failure to tender material that addressed the applicant's mental health prior to the offending, at the time of the offending and for a measurable time thereafter, evidence which supported the opinions Dr Furst expressed in his unredacted third report, it is unsurprising that the sentencing judge was unable to afford any weight to Dr Furst's report. I am satisfied that were his Honour to have had the entirety of that evidence before him, his findings with regards to the relevance of the applicant's mental state at the time of the offence would not have been open to him. On any view, they were made on the basis of incomplete information."
In my opinion, by analogy with the circumstances prevailing in Pym, a miscarriage of justice has occurred. The sentencing judge did not have before him evidence that had the significant potential reliably to inform his sentencing discretion. In so saying I acknowledge that Mr Rae has not yet obtained, and this Court has not seen, any additional medical opinion upon which he hopes to rely. It is sufficient to observe that Mr Rae's history of illness suggests that a current review of his medical condition contemporaneously available with a sentencing decision would be a matter of potential significance to a sentencing tribunal.
In this last respect the Crown contends that even if his Honour had had the material explaining Mr Rae's medical history, or possibly even an up-to-date report from an expert detailing his current psychiatric health, there can be no certainty that a different result would follow and that the sentence imposed by his Honour was in any event quite lenient in the circumstances. Moreover, as Mr Rae accepts, the medical material already available does not provide or suggest that his mental health offers an explanation for his offending. In my view, these are matters that can be raised when Mr Rae is resentenced. They are not matters that derogate from the fact that Mr Rae has been the subject of a miscarriage of justice in the way I have described.
In these circumstances I would grant leave to appeal and allow the appeal. The question that necessarily then arises is what should occur next.
In my opinion, the matter should be remitted to the sentencing judge for reconsideration in light of the medical records annexed to Ms Low's affidavit or when and if Mr Rae obtains the further anticipated psychiatric or psychological assessment that he desires. In so saying, I appreciate that the question of remitter has not been without some controversy. The issue arose peripherally in Betts as the following passages reveal: "[17] The question of whether the appellate court is empowered to remit the determination of a sentence appeal under the supplemental powers conferred by s 12(1) of the CAA and its analogues is controversial[20]. A general power of remittal was introduced into the CAA in 1987[21]. It is contained in s 12(2), which provides: 'The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.' [18] To the extent that the extrinsic material affords any assistance in identifying the object of the inclusion of the general power of remittal, it does not provide support for the conclusion that s 12(2) qualifies the conditional re-sentencing obligation imposed by s 6(3). [19] As the Court of Criminal Appeal recognised in O'Neil-Shaw v The Queen, there is a tension between the terms of s 6(3) and recourse to the power of remittal. The utility of a power of remitter in a case such as O'Neil-Shaw, where the sentence hearing has been tainted by procedural irregularity, is evident. The question of whether it is available is not reached in this case. It might be a matter for consideration by the legislature."
Fullerton J in Pym considered that remitter was appropriate. Her Honour, with the agreement of Hoeben CJ at CL and Price J, said this: "[85] For that reason I am satisfied that the sentencing proceedings miscarried and that the matter should be remitted to the District Court for a fresh sentence proceeding. I express no view as to how those proceedings might be conducted or the evidence which might be tendered or called. That is a matter for the judgment of the parties."
I consider that this Court should take a similar approach. That is particularly so having regard to the fact that no error has been identified in the way in which his Honour sentenced Mr Rae. His Honour should in the circumstances be given the opportunity to consider any further material that Mr Rae wishes to place before him. Correspondingly, the Crown should have the opportunity to respond to such material in such fashion as it may be advised.

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