Smith v R [2024] NSWCCA 59

Smith v R [2024] NSWCCA 59

Because Dr Chew's report was tendered without objection, he was not cross-examined, and the Crown did not dispute his opinion that there was a causal link between the applicant's psychiatric and cognitive impairments and the offending, procedural fairness required the sentencing judge to alert the parties if she proposed to reject that opinion on a material issue. The failure to do so deprived the applicant of an opportunity to adduce further evidence or submissions, and the rejection affected findings on moral culpability and general deterrence. The sentence was therefore invalid and had to be set aside, with the applicant resentenced.

Jurisdiction
Australia
Judgment Date
01 May 2024
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Aggregate Sentence; Appeal and Resentencing
Outcome
Leave to appeal granted; appeal allowed; sentence set aside; applicant resentenced to imprisonment for 4 years with a non-parole period of 2 years and 9 months.
Legal Topics
['aggravated Break and Enter and Larceny in Company' 'mental Health Impairment and Cognitive Impairment' 'moral Culpability' 'general Deterrence' 'unchallenged Expert Psychiatric Evidence' 'aggregate Sentence']
['criminal Law' 'sentencing' 'procedural Fairness' 'evidence'] ['aggravated Break and Enter and Larceny in Company' 'mental Health Impairment and Cognitive Impairment' 'moral Culpability' 'general Deterrence' 'unchallenged Expert Psychiatric Evidence' 'aggregate Sentence']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Aggregate Sentence; Appeal and Resentencing

Legal Issues

  1. 1 ["Whether the sentencing judge denied procedural fairness by rejecting unchallenged psychiatric evidence of a causal link between the applicant's psychiatric disorders and cognitive impairment and the offending without giving the applicant an opportunity to respond." "Whether the psychiatric evidence was material to the assessment of the applicant's moral culpability and the weight to be given to general deterrence." 'What sentence should be imposed on resentencing if the original sentence was invalidated.']

Ratio Decidendi

Because Dr Chew's report was tendered without objection, he was not cross-examined, and the Crown did not dispute his opinion that there was a causal link between the applicant's psychiatric and cognitive impairments and the offending, procedural fairness required the sentencing judge to alert the parties if she proposed to reject that opinion on a material issue. The failure to do so deprived the applicant of an opportunity to adduce further evidence or submissions, and the rejection affected findings on moral culpability and general deterrence. The sentence was therefore invalid and had to be set aside, with the applicant resentenced.

Court Disposition

Leave to appeal granted; appeal allowed; sentence set aside; applicant resentenced to imprisonment for 4 years with a non-parole period of 2 years and 9 months.

Orders

  • ['Grant the applicant leave to appeal from the aggregate sentence imposed on 24 March 2023 in the District Court at Lismore.' 'Allow the appeal and set aside the sentence.' 'Resentence the applicant to imprisonment for 4 years, comprising a non-parole period of 2 years and 9 months to date from 23 February 2022,...