Nguyen v R

1. [1]

   DAVIES J: I agree with Dhanji J.

2. [2]

   DHANJI J: The applicant, Huy Hong An Nguyen, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed upon him in the District Court of New South Wales at Sydney on 5 July 2024 by his Honour Judge Abadee.

3. [3]

   The applicant was sentenced with respect to the following offences:

4. [4]

   The applicant was afforded a combined discount of 20 percent with respect to each offence comprised of 10 percent for his pleas of guilty, which were entered before and during trial, and 10 percent for his assistance to authorities.

5. [5]

   The applicant was sentenced to an aggregate sentence of 5 years and 6 months imprisonment with a non-parole period of 3 years, commencing on 4 June 2024. The non-parole period will end on 3 June 2027 and the full term will expire on 3 December 2029.

6. [6]

   The indicative sentences for each of the three offences following the application of the 20 percent discount were: 4 years; 3 years and 2 months; and 1 year and 7 months.

7. [7]

   The sole ground of appeal on which the applicant seeks to rely is as follows:

8. [8]

   The ground of appeal concerns the opinion expressed by a psychologist in a report tendered by the applicant attesting to a nexus between mental health conditions which afflicted the applicant, at least at the time he was assessed, and the offending conduct. The applicant complains that the sentencing judge denied him procedural fairness by rejecting the opinion without having afforded him an opportunity to be heard on the matter.

9. [9]

   For the reasons set out below, I would grant leave to appeal but would dismiss the appeal.

The Facts

1. [10]

   A statement of agreed facts signed by the applicant on 23 April 2024 was tendered during the sentencing proceedings. Having regard to the limited scope of the proposed appeal, the series of events the subject of the agreed facts are succinctly summarised, as follows.

2. [11]

   The conduct the subject of count 1 concerned two premises at Marrickville. The applicant made the premises available to unknown persons, knowing that those persons would modify and use the property to cultivate cannabis indoors. The applicant had, with his wife, leased premises in 2018, which they used for their textiles business. In November 2020, he took out a lease on the neighbouring property. In December 2020, the applicant moved his business and his family to a new address. Shortly after, a false electricity account was established and the premises were renovated for the purpose of being used for the enhanced indoor cultivation of cannabis plants by other unknown males. In February 2021, the applicant exercised his option to extend the lease for a further three years.

3. [12]

   A search warrant was executed on the premises on 20 April 2020. The sentencing judge described what was found (at [15]-[17]):

4. [13]

   The applicant’s liability for the offence was based on his sub-leasing of the premises and knowing that they would be used for cultivating cannabis by indoor means, including modifying the premises to facilitate that activity. The applicant was sentenced on the basis that while he knew the number of plants being cultivated was significant and numbered at least 200, he did not know the precise number.

5. [14]

   The conduct the subject of count 2 concerned the applicant, as the leaseholder, making available premises at Lewisham to unknown persons, knowing that those persons would modify the property to cultivate cannabis indoors. The applicant had, with his wife, leased the premises in November 2020. In April 2021, the applicant moved to a new address and provided the keys to the premises to other unknown males. On 16 July 2021, a real estate agent and property valuer attended the premises. The real estate agent observed multiple plants in pots which he believed to be cannabis and contacted police. Police attended the premises later that day. The sentencing judge described what was found (at [25]-[27]):

6. [15]

   The applicant’s liability for the offence was based on his subleasing of the premises, knowing it would be used for cultivating cannabis by enhanced indoor means, including modifying the premises to facilitate that activity.

7. [16]

   The conduct the subject of count 3 concerned the applicant supplying a falsified sub-lease agreement to the owner of the two Marrickville premises, in an effort to frustrate or deflect police investigations and thereby pervert the course of justice. Within the same week that the police executed the search warrant on the Marrickville premises, the applicant met with the owner of those premises and provided a falsified sub-lease agreement. With the sub-lease agreement, the applicant provided a photocopy of two falsified New South Wales drivers licences, each of which contained false residential addresses. The applicant also provided a mobile telephone number purportedly belonging to the new lessees, but which was registered to another person by the name of Can Ly.

8. [17]

   The applicant’s liability for the offence was based on the applicant providing the falsified documents to the owner of the Marrickville premises in relation to the sub-leasing of premises. The applicant was sentenced on the basis that, following the execution of the search warrant, he created and utilised a variety of false documents, which involved a level of planning and skill, with the intention of perverting the course of justice.

Proceedings on Sentence

1. [18]

   The proceedings on sentence took place on 5 July 2024. Both parties provided written submissions and made oral submissions to the Court.

2. [19]

   The Crown tendered a bundle of documents comprising a Crown sentence summary, a notice of committal, an indictment, a statement of agreed facts, the applicant’s New South Wales criminal history and custodial history and a sentencing assessment report dated 28 June 2024. The Crown also read a confidential affidavit of Detective Acting Superintendent Andrea Panozzo dated 4 July 2024.

3. [20]

   Tendered on behalf of the applicant was an unsworn statement by the applicant signed 3 July 2024, an affidavit of the applicant’s de facto partner Ms Trang affirmed 22 May 2024, a psychological report prepared by Dr Carmelo Pollicina dated 23 June 2024, two character references, and a pathology report dated 28 June 2024 indicating that Ms Trang was pregnant.

4. [21]

   It is useful here, given the proposed ground of appeal, to extract relevant parts of Dr Pollicina’s report dealing with the applicant’s mental health issues:

5. [22]

   With the exception of the psychologist’s report, the evidence relied on by the applicant raises no issues of relevance for the purposes of this application.

Sentencing

1. [23]

   The applicant was sentenced on the facts summarised above, and, generally, the evidence relied on by him. Having regard to the limited compass of the application, it is unnecessary to canvass his Honour’s reasons in any detail. It is sufficient to note that his Honour rejected the opinion of the psychologist as to the applicant’s offending being causally related to his mental health conditions. His Honour’s reasons for rejecting this aspect of the opinion are discussed below in the context of the proposed ground of appeal.

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

1. [24]

   As noted above, the applicant tendered the report of Dr Pollicina. He relied on the conclusions in the report including the conclusion that (at par [22]):

2. [25]

   The applicant’s written submissions on sentence included the following:

3. [26]

   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.

4. [27]

   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.

5. [28]

   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.

6. [29]

   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.

7. [30]

   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:

8. [31]

   This was a submission as to the applicant’s psychological condition at the time of sentence, tied to the impact of his imprisonment on his family (presumably, the point being that the hardship to third parties was not exceptional, and further, that any hardship or distress suffered by the applicant as a result of his concern for his family’s capacity to manage in his absence was not significant). It did not amount to a challenge to the evidence of Dr Pollicina or the submission of the applicant in reliance on it.

9. [32]

   Given the above, I do not accept that the relevant opinion of Dr Pollicina was challenged by the Crown.

10. [33]

    The applicant, in oral submissions before the sentencing judge, did not address the evidence of Dr Pollicina as to the postulated causal connection between his mental health and his offending. This did not however, reflect a retreat from what had been set out in the written submissions. In that regard, as submitted by the applicant’s counsel on the application before this Court, counsel was entitled to rely on the written submissions without there being any obligation to recite that material orally. Indeed, counsel should be encouraged to conduct proceedings efficiently, which includes not reciting submissions with respect to which no issue has been taken. Of course, had the Crown, or his Honour, taken issue with the submission it would be expected that the response would be forthcoming if the submission was to be maintained.

11. [34]

    No issue was taken with the evidence of Dr Pollicina, or the submissions of the applicant in reliance on that evidence by the sentencing judge in the course of the proceedings before him.

12. [35]

    Despite the absence of any challenge to the evidence or submission, and not having himself raised any issue, in dealing with Dr Pollicina’s report the sentencing judge found as follows (at [58]-[62)]:

13. [36]

    The applicant contends that he was denied procedural fairness. That is, he contends that given the approach of the parties procedural fairness required the judge, before rejecting the applicant’s contention as to his reduced moral culpability, to raise with the applicant’s counsel the possibility the submission may not be accepted, thereby giving counsel the opportunity to respond. The applicant submits that the failure to do so caused the proceedings to miscarry, in turn warranting the intervention of this Court. The applicant further submits that if his contention is made good, the appropriate order is for the remittal of the proceedings to the District Court. To be clear, it was not submitted that this Court should make its own finding on the issue and proceed to resentence.

14. [37]

    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.

15. [38]

    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.

16. [39]

    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.

17. [40]

    Dr Pollicina’s reasoning can be summarised as follows:

18. [41]

    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.

19. [42]

    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.

20. [43]

    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.

21. [44]

    Returning to the proposed ground of appeal, while not contending that the sentencing judge was obliged to accept the opinion, the applicant complains of injustice in the rejection of the opinion without notice to him.

22. [45]

    The applicant in written submissions relied on Klewer v National Disability Insurance Agency [2023] FCA 630 where Raper J, citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, said at [106] “… that the decision-maker is required to advise of any adverse conclusion which has been ‘arrived at which would not obviously be open on the known material’”. The short answer to this, based on what has been said above, is that the rejection of Dr Pollicina’s conclusion was obviously open on the known material. Perhaps appreciating the peril in relying on this statement, at the hearing of the matter the applicant relied heavily on the reasons of Basten JA in O’Neil-Shaw v The Queen [2010] NSWCCA 42 at [26]. His Honour, after referring to Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593 and R v Palu [2002] NSWCCA 381; (2002)134 A Crim R 174, said:

23. [46]

    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.

24. [47]

    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.

25. [48]

    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].

26. [49]

    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]:

27. [50]

    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]).

28. [51]

    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.

29. [52]

    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.

30. [53]

    I would reject the applicant’s sole ground.

31. [54]

    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.

32. [55]

    Given the Court heard full argument I would grant leave to appeal but dismiss the appeal.

Orders

1. [56]

   I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      Dismiss the appeal.

2. [57]

   HUGGETT J: I agree with Dhanji J.