Lam v R

HOEBEN CJ at CL:

On 14 February 2014 Arnott SC DCJ sentenced the applicant to imprisonment with a non-parole period of 7 years, commencing 16 May 2012 and expiring 15 May 2019 with a balance of term of 4 years expiring 15 May 2023.

The applicant seeks leave to appeal from that sentence on the following grounds:

If successful on these Grounds of Appeal, the applicant seeks an order that the sentence be quashed and that the matter be remitted to the District Court for further hearing and determination.

There was substantial agreement between the parties as to the facts on which the applicant was to be sentenced. However, the applicant’s role in the offence was not agreed. There was also a contest between the parties as to whether uncharged acts of the applicant could be proved beyond reasonable doubt. These acts were the applicant’s involvement in three other consignments described as containing Fuji film in late April and early May 2012.

The Crown’s evidence before his Honour was the Agreed Statement of Facts with the qualifications to which I have referred. Photographs and transcripts of intercepted telephone calls and listening device intercepts supplemented the Agreed Statement of Facts.

The applicant, a Chinese National, arrived in Australia on 10 March 2012 from Hong Kong on a three month visa. In April 2012 he rented accommodation at 34 Hollis Avenue, Eastwood. On the afternoon of 18 April 2012 a telephone call between the applicant and Chun Lok Lam was recorded. In that call the applicant referred to “total should be 1400” and that they “both should go over to BJ’s place first”, that the applicant should “get off first and look for the person”, that he would “come over again and that is the safest”. Later that evening another telephone call between those two was intercepted. In it the applicant referred to himself as now “being the runner at every occasion”, and that “quite a few people have come over … We are working as runner for them”.

On 9 May 2012 a consignment arrived by FedEx Airfreight at Sydney Airport from Hong Kong addressed to Ho Chi Man of 2 Eastwood Avenue, Eastwood. A mobile phone contact number, the last three digits of which were 584, was written on the address. Customs officers examined the contents and found it to contain two Fuji film cameras and 18 boxes of Fuji film. Heroin was found concealed inside one of the boxes of Fuji film. The purity of the heroin ranged between 71.9% and 76.2% and accordingly the total weight of pure heroin was calculated to be 1.5635 kgs.

On the morning of 11 May 2012 a Federal Police officer, dressed in a FedEx uniform, tried to deliver the package to 2 Eastwood Avenue. An unidentified male at the address said that he did not know anyone by the name of Ho Chi Man and refused to accept delivery of the consignment.

When the applicant was arrested on 16 May 2012 he was in possession of two mobile phones. The SIM card for one of those phones was registered to the name and address of someone other than the applicant. A number of text messages were located on the handset, which referred to the waybill number for the consignment and the address at 2 Eastwood Avenue. The other phone when examined, revealed that it had been used to search Google Maps for 2 Eastwood Avenue. After the applicant’s arrest, his residence at 34 Hollis Avenue, Eastwood was searched and the SIM card for the mobile phone service ending in 584 (being the telephone number on the consignment) was found.

On 14 May 2012 a consignment arrived by FedEx Airfreight at Sydney Airport addressed to Lam Man Leung of 136 The Boulevard Strathfield, from Hong Kong. A mobile phone contact number the last three digits of which were 079 was written on the address. Customs officers examined the consignment and found it to contain 10 table-tennis bats. A total of 1.395 kilograms of heroin was found concealed inside the table-tennis bats. The purity of the heroin ranged between 52.9% and 77.5% and accordingly the total weight of pure heroin was calculated to be 822.3 grams.

Australian Federal Police officers substituted flour for the heroin. A listening device was inserted in the consignment. On 16 May 2012, an AFP officer dressed in a FedEx uniform tried to deliver the consignment to 136 The Boulevarde. No persons were at home and the officer left a note with contact details including a telephone number to arrange a future delivery.

At about 1pm, this AFP officer received a call asking for the consignment to be delivered, not to 136 The Boulevarde, but to the premises at 138. The caller was a co-offender, Shing Yuet Yeung. Mr Yeung was a Hong Kong national who had arrived in Australia in April and had subleased a room at 138 The Boulevarde. Telephone intercept and call charge records indicated numerous calls between Yeung and the applicant in the two weeks before 16 May 2012.

At about 1.50pm, acting as a FedEx courier, the AFP officer delivered the consignment to 138 The Boulevarde. Yeung took delivery of it. After he took delivery, there were a number of telephone calls between him and Binh Huy Tran, referred to in the calls as "Jimmy". Tran was to collect the consignment at 3pm that day. There were then a number of calls between the applicant and Yeung. In one call at 2.12pm, Yeung asked the applicant if he was coming over and that, "it's set at 3 o'clock". At 2.45pm, the applicant arrived by taxi at 138 The Boulevarde. The listening device recorded a conversation between Leung and the applicant in which Leung explained to him that the heroin did not seem right, that it was the wrong weight and consistency to that which he expected and that he had told this to "the boss of the other side". Leung said it had no smell and that "previous ones really irritates the nose".

The applicant was arrested when he left the premises. He was carrying a notebook with the address "138 The Boulevarde, Strathfield" written in it. He was also carrying $1,250 in cash.

On 17 May 2012, a consignment arrived by FedEx Airfreight at Sydney Airport addressed to Mr Yeung, 32 Hollis Avenue, Eastwood which was next door to the applicant’s address. A mobile phone contact number, the last three digits of which were 851, was written on the address. The SIM card corresponding to the mobile telephone number ending in 851 was found at 138 The Boulevarde when those premises were searched.

Custom officers examined the contents of the consignment and found it to contain a silver coloured plastic trophy. There was a cavity inside the trophy in which eight foil packages of heroin were found. The base of the trophy also had a cavity in it in which another four plastic bags of heroin were found. A total of 1030.6 grams of heroin was found. The purity of the heroin ranged between 48.7% and 50.6% and, accordingly, the total weight of pure heroin was calculated to be 510.1 grams.

An examination of one of the phones in the possession of the applicant at the time when he was arrested, revealed that he had dialled the airway bill number for consignment 3. The applicant had accessed the FedEx online tracking system for consignment 3, and had searched the Google Maps App, not for 34 but 32 Hollis Avenue, Eastwood. Further analysis showed that he had sent the address, "32 Hollis Avenue, Eastwood", to two other mobile telephone numbers. In the notebook which he had when he was arrested, was written the address, 32 Hollis Avenue.

In an intercepted telephone call on 10 May 2012 the applicant told Yeung how to dismantle a consignment containing narcotics concealed within a cup or trophy, similar to the content of Consignment 3. On 11 May 2012 another conversation between the applicant and an unknown male with an Australian mobile phone number was intercepted which talked about the contents of various consignments, including a trophy.

The total weight of pure heroin in the three consignments was 2.8959 kilograms. It had a wholesale value of $1,108,375 and a street value of between $2,895,860 and $3,378,480.

Intercepted telephone calls between the applicant and several of his associates between 18 April and 11 May 2002 revealed the applicant to have been what the Agreed Statement of Facts referred to as “a key intermediary in an international drug syndicate” importing illicit drugs into Australia. He also trained other people in Australia to carry out the same role. Several calls had the applicant discussing the weight of drugs imported or to be imported and the timing of the arrival of various consignments. They indicated his association with Mr Lam and Mr Yeung, as well as Chun Kit Lam, Bin Je Wang and a person in Hong Kong known only as "Elder Brother".

On various occasions imported drugs were delivered to all these associates. In conversations the applicant discussed with these individuals the packaging in which the drugs were to arrive in Australia. He also discussed the amount of money he was earning in carrying out his role as intermediary and complained that he had not yet made enough money to "reach his goal". He discussed the practice adopted by the syndicate of addressing consignments to premises next door to the intended delivery address.

The applicant in the sentence proceedings submitted that he acted as a runner under supervision and direction for $1,000 for each consignment but made nothing. He submitted that his decision to come to Australia was brought about by the relationship with his girlfriend terminating, and a desire for a holiday and to see a friend with whom he had been to school in Australia. The applicant emphasised that he had only $1,250 on him when arrested.

His Honour rejected those submissions and set out his findings as follows:

On the basis of those findings, his Honour stressed the importance of general deterrence in respect of offenders who were commercially motivated to import drugs into Australia. His Honour wished to make it clear to “would be traffickers” that the potential financial gains from drug importation would be neutralised by the risk of severe punishment.

His Honour took into account in the applicant’s favour that the drugs had not found their way into the community. That having been said, his Honour was not prepared to give that factor substantial weight because of the clear intention on the part of the applicant that the drugs would be disseminated within the community.

His Honour took into account the provisions of s 16A(1) and s 16A(2) of the Crimes Act (Cth). As part of that process, his Honour made findings concerning the applicant’s subjective case.

His Honour noted that the applicant had not given evidence. There was, however, tendered in his case a written statement from him, which had attached to it educational certificates of achievement, photographs of him teaching Taekwondo to children, a letter confirming his work in the laundry in prison and a report from Dr Jacmon, psychologist, dated 12 August 2013. There was also a pre-sentence report dated 6 August 2013 from Ms Merhi, a Community Corrections Officer.

By reference to that material, his Honour was able to put together the applicant’s background. He had turned 22 in May 2012 and was aged 23 at the time of sentence. The applicant was born and raised in Hong Kong, coming from a stable and close knit family. Both parents were alive and he had two siblings. Before this offence, he had lived in Australia in 2003 for one year when he completed Year 8. He returned to Hong Kong because his parents could not afford to keep him in Australia any longer. He completed his secondary schooling in Hong Kong. Thereafter, he had remained in fairly constant employment as a waiter, hairdresser, delivery driver and for the two and a half years before the offence, as a Taekwondo instructor. In his written statement he said that he had broken off with his girlfriend before coming to Australia.

The statement recorded that from the age of 18 until he went into custody, the applicant was a recreational user of cannabis and a drug similar to cocaine. In 2009 a magistrate in Hong Kong had sentenced him for possessing a dangerous drug and resisting a police officer in the execution of his duty to a 12 months probation order. His Honour considered that those past offences had little relevance to this sentencing exercise, other than to indicate that the applicant was familiar with illicit drugs.

In relation to the pre-sentence report, and the report from Dr Jacmon, his Honour said:

His Honour found that although the applicant had been slow in displaying contrition and remorse, a measure of it was now emerging. There was some acknowledgment of the impact of his actions upon himself, his family and the community in the pre-sentence report. His Honour was prepared to make that finding, even though the applicant had not given evidence.

His Honour concluded that the applicant’s prospects of rehabilitation and the unlikelihood of his re-offending were moderate to reasonable. His Honour based this conclusion on his family support, his consistent work history and the good reports of him since being in custody. His Honour took into account that the applicant would be serving a prison sentence in a country which was not his own, and far away from his family and friends, so that his time in prison would be more difficult.

His Honour was prepared to discount the applicant’s sentence because of his plea of guilty as being indicative of his willingness to facilitate the course of justice. His Honour noted that the strength of the Crown case was relevant to that consideration. His Honour did not quantify the extent of the discount. While his Honour accepted that the plea of guilty was not entered at the earliest opportunity, his Honour found that it was entered at a reasonably early stage.

His Honour then turned his attention to the uncharged acts upon which the Crown relied to rebut the submission that the applicant’s criminality was limited to his involvement in the three consignments particularised in the indictment. As already indicated, the applicant denied that he had been involved in any of the uncharged acts.

The Crown case was that when the applicant was arrested, he had a mobile phone with a number which ended in 834. The Crown submitted that an analysis of the phone revealed the following:

His Honour found that the applicant’s involvement in those matters was proved beyond reasonable doubt. Since this finding has not been challenged, it is not necessary to set out the evidence on which his Honour’s finding was based.

In taking the uncharged matters into account, his Honour was conscious of the fact that he was only sentencing in respect of the offence to which the applicant had pleaded guilty (R v JCW [2000] NSWCCA 209; 112 A Crim R 466). His Honour did not take those matters into account as circumstances of aggravation but to place the offence to which the applicant pleaded guilty in context and to deny him any claim to mitigation or attendant reduction of sentence to which he might have been entitled if the charged offence had been an isolated incident.

His Honour accepted that the evidence rebutted any suggestion that the applicant’s criminality was limited to involving himself in three isolated acts confined to a narrow two week period and that he should not be afforded any leniency on that basis. His Honour found that the applicant had involved himself in an ongoing course of planning and activity extending over at least three months for the importation of heroin into Australia.

Because his Honour had also sentenced a number of co-offenders, he dealt with the issue of parity. That part of his Honour’s consideration is not relevant to the grounds of appeal and there is no need to set out the reasoning.

It is, however, necessary to set out in some detail the report of Dr Jacmon. The consultation, which formed the basis of the report, took place on 11 August 2013 while the applicant was in custody. Dr Jacmon was a qualified psychologist and had a doctorate in education, which included research on the treatment of depression. The report said nothing about an interpreter being used, although it is clear from the sentence proceedings that the applicant required an interpreter. The report did not indicate how long the consultation took. The only test, which was administered to the applicant, was the Beck Depression Inventory (BDI). This is a test which consists of a series of questions administered to the person being assessed.

Relevant parts of the report are as follows:

Dr Jacmon expanded the history received from the applicant as follows:

The matter first came before his Honour for sentence on 15 November 2013. Because of the disputed issues of fact, the Crown advised the court that the matter would have to be adjourned so that witnesses could be called on those issues. The Crown tendered its Statement of Facts, the pre-sentence report, transcripts of telephone calls and photographs. The Crown also handed up its written sentencing submissions. Shortly after that hearing, the report of Dr Jacmon was served on the Crown.

The matter next came before the Court on 6 December 2013. It is apparent from the transcript of those proceedings that the matter was reached late in the day and that there was some pressure on both counsel to complete the matter. On that occasion, Dr Jacmon’s report was tendered, together with the applicant’s statement, testimonials, certificates of achievements and a letter from the Metropolitan Remand Centre. At the conclusion of his submissions, counsel for the applicant thanked the court staff for staying back (T.25.46). In addition to its written submissions, which had been placed before the court on the previous occasion, the Crown briefly addressed. The Crown made it clear in submissions that it disputed the factual assertions by and on behalf of the applicant that he had occupied a subordinate role to Yeung and had been led into the offending by Yeung.

On that issue, the Crown said:

The Crown’s written submissions, which were handed up on 15 November 2013, were to similar effect on that issue. They provided more detail as to the importance of the applicant’s role in the drug importation scheme. The written submissions also went into considerable detail as to the applicant’s awareness of the nature of the imported substance and the financial motivation for his offending (AB 312 – 313, 315 – 316).

It is convenient to deal with both Grounds of Appeal together since they raise the same issue.

The applicant submitted that Dr Jacmon, as an expert in the field of depression, had expressed an opinion that his functioning was impaired by a major depressive disorder which likely resulted from the breakup with his girlfriend in Hong Kong. This had led to him travelling to Sydney to ameliorate his distress, had affected his judgment so that he helped a friend to provide addresses for the importation of fake goods from China and his distress increased when he discovered that the importations contained drugs. The applicant submitted that Dr Jacmon had connected the commission of the offence to his depressive condition in that it had diminished his capacity for judgment and therefore had limited his capacity to avoid illegal activity which meant that he placed greater trust in his friend’s assurance that the consignments did not contain drugs. The applicant submitted that the acceptance of the opinions of Dr Jacmon played an important part in his case on sentence in that an acceptance of the opinion in the report must have resulted in a substantially lesser sentence.

The applicant submitted that during the proceedings on sentence, his Honour gave no indication that he would reject Dr Jacmon’s opinion with respect to his major depressive disorder, both at the time of the offence or at the time of sentence. He submitted that the Crown had not objected to the report at the time of its tender and had not called any psychiatric or psychological evidence to rebut that of Dr Jacmon. The applicant submitted that at no time did the Crown submit that Dr Jacmon’s opinion should not be accepted.

The applicant accepted that it was open to his Honour to reject that part of the applicant’s history to Dr Jacmon with respect to the part played by Yeung, but it was not open to his Honour to reject Dr Jacmon’s opinion with respect to his mental state at the time of the offence and at the time of sentence. The applicant submitted that his Honour had an obligation to impose the appropriate sentence based on the evidence properly before him (O’Neil-Shaw v The Queen [2010] NSWCCA 42 at [26]). The applicant submitted that where evidence was not challenged or disputed by the Crown and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or “at least was not entitled to do so without proper notice to the applicant that he intended to take that course” (O’Neil-Shaw v The Queen at [26]).

The applicant submitted that if his Honour had any doubts about the report of Dr Jacmon, he should have communicated those doubts to the parties and his failure to do so gave rise to a denial of procedural fairness. The applicant submitted that the prosecution’s approach to the report of Dr Jacmon was limited to attacking the history taken by Dr Jacmon with respect to Yeung, which was relevant to his Honour’s assessment of the applicant’s role in the offence. The applicant submitted that the Crown made no submissions as to whether the applicant was suffering from a major depressive disorder, either at the time of the offence or at the time of sentence.

The applicant accepted that there might be circumstances in which the opinion of a mental health expert relied heavily on an offender’s account of the offending, such that a sentencing judge was entitled to accord diminished weight to the opinion because of the unreliability of the offender’s account. The applicant submitted that this was not such a case. The applicant submitted that once his Honour accepted that the applicant had broken up with his girlfriend, he should also have accepted Dr Jacmon’s opinion as to the continuing effects of the major depressive disorder brought about by that event.

In support of those submissions, the applicant relied upon what was said by Emmett JA and Simpson J in Cherdchoochatri v R [2013] NSWCCA 118; 277 FLR 126 where their Honours said:

The applicant also relied upon the following observations by Allsop P (with whom Price J agreed) in Devaney v R [2012] NSWCCA 285 where his Honour said:

The applicant submitted that it was not reasonably open to the sentencing judge to reject the psychological case advanced by him that his major depressive disorder was causally related to his offending and that he was suffering from a major depressive disorder at the time of sentence. The applicant submitted that the Crown did not require Dr Jacmon for cross-examination and did not advance an alternative psychological case.

The applicant submitted that Dr Jacmon’s opinion should have been accepted and that his mental illness should have been taken into account in accordance with the principles summarised by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]:

His Honour’s rejection of the opinion of Dr Jacmon was based on his Honour’s rejection of the history upon which that opinion was based. That is a legitimate basis for rejecting the conclusions in an expert’s report (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Priestley, Powell and Heydon JJA at [4], [10], [21], [64] – [78])).

Fundamental to the opinion of Dr Jacmon was an acceptance of the following matters:

Whether or not the applicant had in fact broken up with his girlfriend and had become depressed thereby could not be directly challenged because the applicant did not give evidence. His motivation for coming to Australia, however, could and was directly challenged. The explanation given to Dr Jacmon was demonstrated by the evidence to be untrue. So also were the circumstances of his contact with Yeung and his involvement with the importation of drugs into Australia.

The evidence before his Honour made it clear that the applicant’s arrival in Australia was premeditated and planned as were his subsequent actions in arranging for addresses to which consignments could be sent. His evidence concerning Yeung was clearly a falsehood in that he had arrived in Australia weeks before Yeung and the telephone intercepts made it clear that he was the person giving directions and providing information to Yeung. His motivation for his involvement in drug importation was financial gain, not that he had been inadvertently drawn into such a scheme because of a reduced capacity (due to depression) to make appropriate decisions. The disconnect between the history taken from the applicant by Dr Jacmon and the reality was not just a matter of detail but comprised a sequence of deliberate falsehoods designed to exculpate him from responsibility for his conduct.

The extent of the applicant’s falsehoods was such that his Honour was entitled to reject the key conclusions of Dr Jacmon. It is apparent that if there had been a breakup with his girlfriend resulting in depression, that had nothing to do with the offending. The applicant’s actions and the inferences to be drawn from the telephone intercepts made it clear that he had full knowledge and appreciation of exactly what he was doing when importing drugs. As indicated, the history concerning Yeung was also a fabrication. Given the level of deceit practised upon Dr Jacmon on these key issues by the applicant, it was open to his Honour to reject not only those parts of the applicant’s history which could be proven to be falsehoods but those in respect of which there was no evidence except the unsubstantiated assertions of the applicant reported second hand by Dr Jacmon, i.e. the fact that he was depressed as a result of the breakup with his girlfriend and the fact that he was depressed at the time of examination. As his Honour observed, he may well have been somewhat depressed when examined by Dr Jacmon but this was because he was facing a substantial term of imprisonment, not because of what had happened in relation to his girlfriend, or because he had discovered that he had inadvertently become involved in drug importation.

While it is true that the Crown did not in terms attack the report of Dr Jacmon and his conclusions it did, both in writing and orally, attack the applicant’s version of events as set out in his statement and as accepted by Dr Jacmon. Counsel for the applicant was well aware of this attack and made submissions in response. Once the substratum upon which Dr Jacmon’s conclusions were based was destroyed, those conclusions could not stand.

It follows that there was no unfairness in what his Honour did. He made findings as to the part played by the applicant in the importation. That was an issue which was consciously contested by the parties. The effect of those findings was to almost completely undermine the conclusions of Dr Jacmon which were based on a version of the facts rejected by his Honour.

It is no answer to say that his Honour should have given notice that he was considering rejecting Dr Jacmon’s opinion. It must have been apparent to counsel appearing for the applicant that if his Honour rejected the applicant’s submissions as to the part he played in the importation, that this would have a knock on effect in relation to the conclusions of Dr Jacmon. What occurred was the inevitable consequence of the applicant not giving evidence and relying on an expert’s report without calling the expert.

On the facts of this case, even if Dr Jacmon had been called, it is difficult to see how that could have altered the result. All that Dr Jacmon could say under cross-examination was that his opinion was based on the history which he was given and that if that history were found to be incorrect, that would substantially invalidate his conclusions. The Beck Depression Inventory test would not have any effect on that result since that was a test which depended for its usefulness on the accuracy/honesty of the person answering the questions.

The cases upon which the applicant relied do not assist him. They deal with very different factual situations.

In Devaney v R there were reports from three psychiatrists before the sentencing judge to the effect that at the time of committing the offence, the applicant was in a state of psychosis. The cause of that psychosis was later diagnosed as paranoid schizophrenia. The sentencing judge inclined to the view that the applicant was attempting to manipulate the psychiatrists while avoiding full confrontation with his violent history and attitudes towards his ex-girlfriend (the victim). The sentencing judge therefore substantially discounted the opinions of the three psychiatrists. Most particularly, there was no challenge to the factual basis upon which the psychiatrists reached their conclusions.

It is not without significance that in Devaney the court was considering the reports of three psychiatrists, i.e. medical practitioners, and not reports of psychologists. As Allsop P pointed out, it was part of the professional skill of a psychiatrist to assess a history and to determine how it accorded with the hypothesised and formed views of the professional. In this case it was a psychologist taking the history, most of which was demonstrably false.

In Cherdchoochatri v R the applicant gave evidence in the sentence proceedings. In that evidence the applicant raised for the first time, as an explanation for his conduct, the issue of duress. The applicant was not cross-examined by the Crown to suggest that what he said concerning duress was untrue or incorrect. In those circumstances, the Court of Criminal Appeal held that his Honour should have given some indication that he proposed to disbelieve the applicant so as to enable his counsel to make appropriate submissions. That factual circumstance is very different to this case.

In the course of giving her reasons in Cherdchoochatri v R Simpson J adverted to the tension which can arise between a judge’s prerogative to reject evidence, even if there is no evidence to the contrary, and circumstances where a miscarriage of justice can arise.

Her Honour said:

In this case the disputed facts were resolved by the accusatorial process upon the evidence before the court. The applicant’s legal advisers were aware of the contest and participated in it. The facts in dispute were resolved in a way adverse to the applicant. Since the opinion of Dr Jacmon was predicated on a resolution of the facts favourable to the applicant, the rejection of the applicant’s position substantially undermined that opinion. That made the findings by the sentencing judge almost inevitable. The process which took place did not involve any denial of procedural fairness.

The above is sufficient to dispose of the matter. For the guidance of lower courts, however, I wish to say something further. Although this issue is not relevant to the outcome of the appeal in that no submissions were made to the sentencing judge in relation to it, it does directly arise from the evidence which was before his Honour.

It is trite to note that the Evidence Act 1995 does not apply in sentencing proceedings unless a direction is given to that effect, and that there is a degree of flexibility in sentencing proceedings as to the manner in which evidence may be given. Nevertheless, the rules of evidence as set out in the Act and at common law, embody principles of fairness which have been worked out by the courts over many years. An important part of that body of rules are those relating to opinion evidence.

To be admissible under s 79(1) of the Evidence Act the evidence that is tendered must satisfy two criteria:

In Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said in relation to s 79:

Dr Jacmon was not a medical practitioner and was not medically trained. His curriculum vitae showed that he had a Doctorate in Education, which included research into the treatment of depression. He had a Masters degree in Education, which included a psychological element, i.e. research into reinforcement theory. He had a Bachelor of Science, which included psychology as part of the course. His work history and published research showed that he had considerable experience and expertise in the treatment of depression and other psychological ailments. Even with such qualifications, it is difficult to see how his expression of opinion in paragraph 1 under the heading “Conclusions” could be said to be based on his specialised knowledge based on training, study or experience (at [42] hereof).

The first part of the conclusion, i.e. that the applicant’s “functioning was impaired by a major depressive disorder at clinically significant levels”, was a conclusion available to Dr Jacmon based on the BDI test results. The history taken by Dr Jacmon could also inform that conclusion. Where I have difficulty is in understanding how Dr Jacmon could reach the next conclusion, i.e. “the impairment is likely to have resulted from the breakup with his long term girlfriend in Hong Kong”. That is a medical diagnosis for which I can find no basis in the specialised knowledge or training available to Dr Jacmon.

Similarly, the following conclusions also appear to be beyond the expertise of Dr Jacmon:

The situation is similar to that considered by this Court in WW v R [2012] NSWCCA 165 where the following was set out:

As already indicated, in this case there was another basis by which his Honour could reject the opinion of Dr Jacmon, i.e. that the factual basis upon which the opinion was based was not made out. Even if that had not been so, for the reasons set out above a real question would have remained as to the weight to be given to the conclusions of Dr Jacmon to which I have referred. Normally such objections would go to the admissibility of those parts of the report but since the report was admitted without objection, the weight to be given to those conclusions become an issue.

As was stated in WW v R at [60] in certain circumstances a sentencing judge could give some weight to those conclusions but was not obliged to do so.

The orders which I propose are:

JOHNSON J: I agree with Hoeben CJ at CL.

BEECH-JONES J: Subject to what follows I agree with Hoeben CJ at CL.

The applicant's complaint is that he was denied procedural fairness because the sentencing judge rejected the opinions of his psychologist without either the Crown or His Honour putting him on notice of the possibility that they may not be accepted. Whether a denial of procedural fairness occurs in circumstances where a sentencing judge rejects evidence put forward on behalf of an offender during a sentencing hearing, without its possible rejection being expressly foreshadowed, is a matter of fact and degree. In some cases it has been held that if the rejected evidence is unchallenged evidence from the offender or lay witnesses then a breach has been made out (O'Neil-Shaw v The Queen [2010] NSWCCA 42; Cherdchoochatri v R [2013] NSWCCA 118; 277 FLR 126).

The position is less clear with expert opinions that are at least partly informed by a disputed history given by an offender. In Devaney v R [2012] NSWCCA 285 (Devaney) Allsop P held that the sentencing judge was not entitled to reject the unanimous opinion of three psychiatrists, who found that an offender was suffering from a psychotic illness which directly contributed to the commission of an offence, because of a conclusion that the offender was attempting to manipulate them (at [87] to [89]). This was, in part, because His Honour found that "part of the professional skill of the psychiatrist is the assessment of [a patient's history]" and thus "[t]o say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them" (at [88]).

In my view the guiding principle is whether the course of the proceeding was such that it should have alerted the offender to at least the possibility that a rejection of his history as recounted to the psychologist would result in a rejection of that psychologist's opinion, that is whether a dispute over that history meant that a rejection of the opinion was reasonably perceived as being "in the ring": Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213 at [44] per Mason P). This will depend upon a number of matters including the extent of the dispute over the history, the nature of the expertise and the terms of the opinion. Taking the facts of Devaney, a dispute over an offender's history would not necessarily alert the parties to the possibility that the unanimous opinion of three psychiatrists concerning his suffering from psychotic illness was in issue.

In this case, Dr Jacmon was a psychologist. He was not a medical practitioner. As Hoeben CJ at CL has explained, in terms of a diagnosis of various mental illnesses and their effect upon an offender's "capacity for judgment" they stand in a different position to psychiatrists. The relevant parts of Dr Jacmon's report are set out in the judgment of Hoeben CJ at CL at [42] to [43]. A review of Dr Jacmon's conclusions as set out in [42] clearly suggests that the opinions in [3] and [4] of the conclusion section were based substantially on the history provided to him and not just the fact that the applicant had broken up with his girlfriend. The opinions he expressed in [5] of his conclusion concerning remorse were simply a restatement of what the applicant told him. In my view the nature of Dr Jacmon's opinions and the terms of his report were such that it should have been apparent that a rejection of the offender's version of events as recounted in that report meant that it was at least reasonably possible, even likely, that any relevant opinion he expressed would also be rejected.

I agree with the orders proposed by Hoeben CJ at CL.