Shortland v R

1. [1]

   STERN JA: On 29 July 2022 the applicant, Michael Shortland, was sentenced to an aggregate sentence of imprisonment of 8 years and 9 months commencing on 17 June 2021, with a non-parole period of 6 years and 6 months, following his guilty plea to three charges of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (Counts 1 to 3) and one charge of threatening a person with intent to influence a witness contrary to s 322(1)(a) of the Crimes Act (Count 4). A number of Form 1 offences were also taken into account. He now seeks leave to appeal against that sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

2. [2]

   This application requires an extension of time, having been filed outside the time limit prescribed by r 3.1(3) Supreme Court (Criminal Appeal) Rules 2021 (NSW). In support of this application the applicant relies upon an affidavit of his current solicitor, Paul Hardin, affirmed on 13 August 2024, in which Mr Hardin explains the various delays, including in accessing material from the file of the applicant’s previous solicitor, which affected the progress of the application between 18 August 2022, when Mr Hardin filed a notice of intention to appeal on behalf of the applicant, and 15 December 2023, when the application for leave to appeal was filed. Having regard to this material, I am satisfied that an extension of time should be granted.

3. [3]

   Having regard to the matters set out below, leave to appeal should be granted, and grounds 1 and 2 of the proposed grounds of appeal should be allowed. It is unnecessary to consider ground 3.

Proposed grounds of appeal

1. [4]

   The applicant raises three proposed grounds of appeal.

2. [5]

   First, the applicant contends that the sentencing judge erred in failing to take into account 17 days in which he was in pre-sentence custody. It is not in dispute that from 1 March 2021 up to and including 17 March 2021 (being 17 days), the applicant was detained when bail was refused following the applicant’s arrest on Count 4, but that this was not brought to the attention of the sentencing judge. Under s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), in deciding whether or not to direct that a sentence of imprisonment commences on a day before it is imposed, the court is required to take into account any time for which the offender has been held in custody in relation to the offence. The applicant contends that these 17 days should have been taken into account such that the applicant’s sentence should have commenced on 1 June 2021, rather than 17 June 2021. The Crown accepts that it is open to the Court to uphold this ground of appeal, with the effect that the applicant’s sentence should be quashed. The Crown contends that in lieu thereof both his head sentence and non-parole period should date from 31 May 2021 (so as to reduce the overall sentence by 17 days), rather than 17 June 2021.

3. [6]

   This ground can be dealt with briefly. It is apparent that the applicant’s pre-sentence custody from 1 to 17 March 2021 was not taken into account by reason only of inadvertence. I am satisfied that it should have been taken into account, and that ground 1 should be upheld. I am also satisfied, consistent with the Crown’s submission, that the sentence should have dated from 31 May 2021.

4. [7]

   Second, the applicant contends that a miscarriage of justice was occasioned by the failure of his legal representatives to present evidence before the sentencing judge from a psychologist. The applicant contends that such evidence would have been of significance and that there is a significant possibility that the failure to present such evidence affected the outcome on sentence. In support of this ground, the applicant relies upon a report dated 5 December 2023 from Dr Paul Pusey, Clinical and Forensic Psychologist, which has been obtained by the applicant’s current legal representatives.

5. [8]

   The applicant contends that such evidence was not presented by reason of the incompetence or carelessness of his representation on sentence, but in any event, he should not be bound by a decision made by his legal representatives not to present such evidence given its significance.

6. [9]

   Third, the applicant contends that his sentence is manifestly excessive. In this regard, he points to a number of cases in which, he contends, that the offending was more serious than his offending but the offenders were given comparable sentences to that imposed upon him or otherwise that the offending was comparable to his own but the offenders received significantly shorter sentences.

Evidence

1. [10]

   On the application for leave to appeal, the applicant read affidavits from himself, his mother Dianne Shortland, and two affidavits of his solicitor Mr Hardin. Annexed to the affidavits of Mr Hardin are a report dated 5 December 2023 from Dr Pusey and extracts from the medical records of the Mona Vale Medical Centre on 7 October 2020. The applicant gave some limited further oral evidence at the hearing of the application and was cross-examined. The Crown read affidavits from Mr Woods, the applicant’s solicitor at the sentencing hearing, and Mr Jauncey, the applicant’s counsel at the sentencing hearing. Mr Jauncey was cross-examined.

Background

1. [11]

   Given the matters in issue, it is necessary to describe the circumstances of the applicant’s offending, albeit not in great detail. As there is no challenge to any of the facts as found by the sentencing judge (which were in turn based upon an agreed statement of facts), it is sufficient to summarise the circumstances of the applicant’s offending by reference to those findings.

2. [12]

   By way of context for the offending, records indicate that the applicant spent over 2,000 hours, and lost $643,897.81, gambling at the Dee Why RSL Club between 1 January 2014 and 2 December 2019. He also lost $1,023,240.46 at the Star Casino between 1 January 2000 and 25 December 2019.

3. [13]

   During the 1980s, the applicant and Mr Curtis were school friends. In around 2014, the applicant reached out to Mr Curtis and, falsely, told Mr Curtis that he was a futures trader at Bell Potter in Sydney. He suggested that he could invest Mr Curtis’ money on the futures market and double the returns that Mr Curtis received from his superannuation fund. Mr Curtis agreed and from September 2014 began giving the applicant money for this purpose. The applicant told Mr Curtis that Mr Curtis was paying 10% of the trade and the applicant was paying 90%, with the profits to be divided between them in the ratio of 10:90. This was not true. In fact, the money was simply paid into the applicant’s bank account, then withdrawn by him or redirected to other bank accounts.

4. [14]

   Between 2014 and 2019, the applicant defrauded Mr Curtis of $548,024. Over that period, Mr Curtis took out personal loans to carry out these investments and from around 2 September 2015 told the applicant that he (Mr Curtis) was struggling financially as a result of the money that he had given the applicant, at times to the extent that he could not even cover household expenses. The applicant’s deception included multiple lies, putting pressure on Mr Curtis to invest or make payments (including by rolling over his superannuation), taking out a loan in Mr Curtis’ name, purchasing an Audi car in Mr Curtis’ name, and forging multiple documents. Mr Curtis feared that a confrontation with the applicant would jeopardise his investments.

5. [15]

   Between May and September 2016, the applicant transferred a total of $4,500 to Mr Curtis, but as with the other counts, the sentencing judge found that in the instances when the applicant returned some sums to the victims this was “in order to quell their frustrations and suspicion in order that he continue to offend without detection”.

6. [16]

   Nine Form 1 offences were taken into account on Count 1. These comprised various offences of making or using false documents to obtain property or financial advantage and dealing with identity information to commit an indictable offence. Those offences arose in the context of the matters summarised above. Each Form 1 offense had a maximum penalty of 10 years imprisonment.

7. [17]

   The applicant and Ms Wyndham were friendly in the 1990s. In September 2014, the applicant contacted Ms Wyndham, again representing that he was a successful derivatives trader for Bell Porter. Ms Wyndham disclosed to the applicant that she wanted to leave her husband but was concerned about her ability to support herself financially. During the first half of 2016, the applicant told Ms Wyndham that he had been thinking of ways for her to achieve financial independence and that an investment opportunity had arisen. This investment would allow Ms Wyndham to invest a small amount into an account and receive weekly returns of $400-$500 per week, however she needed to invest quickly to take advantage of the opportunity. The applicant assured Ms Wyndham that the investment was legitimate, safe and backed by Bell Potter. This association with Bell Potter was a significant factor in Ms Wyndham’s eventual decision to invest with the applicant. She did so by paying money into an account she believed was a Bell Potter futures trading account, but which was in fact the applicant’s personal account, including by incurring credit card debt, taking out a personal loan, and later by rolling over her superannuation account of $153,993.55 into an account associated with the applicant.

8. [18]

   Between 2016 and 2017, the applicant defrauded Ms Wyndham of $192,755.55. Again, this involved significant lies, pressure, and forged documents. As with Mr Curtis, the applicant on occasion transferred small amounts to Ms Wyndham, which the sentencing judge found was in order to quell her frustration and suspicion.

9. [19]

   Six Form 1 offences were taken into account on Count 2. These comprised making and using false documents to obtain a financial advantage and dealing with identity information to commit an indictable offence. Each Form 1 offence had a maximum penalty of 10 years imprisonment.

10. [20]

    The applicant and Mr Sanchez had known each other since childhood. In January 2018, the applicant made a Facebook post regarding cryptocurrencies and Mr Sanchez enquired with him to see if it was worth investing in. The applicant suggested that Mr Sanchez invest $10,000 with him and that he would guarantee a $10,000 return in 12 months. Mr Sanchez also indicated that he was refinancing his home loan and the applicant suggested that he invest $100,000 of the home loan with him, which he said would stay in a holding account and not be put into the market. Between February 2018 and April 2019, the applicant defrauded Mr Sanchez of $309,838. This included Mr Sanchez transferring $96,500 that he had obtained by refinancing his home loan and rolling over his superannuation balance of $225,000 into an account associated with the JM Shortland Family Trust (a self-managed superannuation fund), which was then transferred into the applicant’s personal accounts.

11. [21]

    On one occasion the applicant transferred $50,000 to Mr Sanchez. This money came from the earlier transfer of Mr Sanchez’s superannuation balance to the applicant. The applicant also made further smaller transfers to Mr Sanchez, which the sentencing judge found was for the purpose of quelling his frustration and suspicion.

12. [22]

    As with Mr Curtis and Ms Wyndham, the applicant’s deception included lies, forging documents, taking out loans in Mr Sanchez’s name, and putting pressure on Mr Sanchez to make payments.

13. [23]

    Four Form 1 offences were taken into account on Count 3. These comprised making and using false documents to obtain a financial advantage and dealing with identity information to commit an indictable offence. Each Form 1 offence had a maximum penalty of 10 years imprisonment.

14. [24]

    Four days prior to the applicant’s committal hearing he sent Ms Wyndham a message on Facebook. The sentencing judge summarised the message as follows:

The sentencing proceedings

1. [25]

   As set out above, the aggregate sentence imposed on the appellant was 8 years and 9 months, with a non-parole period of 6 years and 6 months, to commence on 17 June 2021 and expiring on 16 December 2027. Each of the counts had a maximum penalty of 10 years imprisonment. The sentencing judge gave a statutory 5% discount in respect of the applicant’s guilty pleas on the eve of the trial.

2. [26]

   The indicative sentences nominated by the sentencing judge were:

   1. (1)

      Count 1 – 5 years;

   2. (2)

      Count 2 – 4 years 1 month;

   3. (3)

      Count 3 – 4 years 1 month; and

   4. (4)

      Count 4 – 2 years 2 months.

3. [27]

   It is also necessary to describe some aspects of the remarks on sentence.

4. [28]

   The sentencing judge had regard to the sums defrauded and the period of deception, that most of the money was not retrievable, and that, as regards Mr Curtis, the offending bore on his future insurability. Her Honour also had regard to the purpose for which the applicant returned some sums to the victims. As to motive, her Honour was satisfied that this was to feed a gambling addiction, the genesis of which her Honour did not know. Her Honour also found that there was “a level of planning and sophistication that can readily [be] described as conniving and elaborate”. Overall, her Honour found that:

5. [29]

   Her Honour rejected the Crown submission that breach of trust was an aggravating circumstance. However, her Honour found that:

6. [30]

   The sentencing judge did not make any express findings as to objective seriousness on Counts 1 to 3 but found that Count 4 fell below the mid-range of objective seriousness.

7. [31]

   Each of the victims provided extensive and detailed victim impact statements to the Court. Without descending into the detail, these showed the ongoing financial, psychological and (as regards Ms Wyndham and Mr Sanchez) physical repercussions of the applicant’s offending. They also disclose how the applicant preyed upon the vulnerability of the victims.

8. [32]

   Mr Shortland’s criminal history involved driving and domestic violence offences. The sentencing judge found that the fact that the applicant was subject to conditional liberty at the time of the public justice offence was an aggravating feature on sentencing, and the applicant’s offending over a six-year period (including while on conditional liberty in respect of the public justice offence), disentitled the applicant to the leniency that would be afforded a person of good prior character with no or limited criminal history.

9. [33]

   The sentencing judge took into account the hardship to the family, exacerbated by the applicant’s custodial status, occasioned by the health difficulties of the applicant’s son and having regard to the fact that the applicant’s two children are undergoing treatment for anxiety with psychologists.

10. [34]

    Whilst the applicant did not give evidence before the sentencing judge, Julie Shortland (his wife) and Dianne Shortland (his mother) did. The sentencing judge observed that Julie Shortland gave evidence that the applicant had for a long time struggled with a cocaine addiction and for some time was also using ice. She also identified an occasion shortly after the birth of their son (in February 2010) when the applicant was alcohol and drug affected and was admitted to Manly Psychiatric Hospital. She also gave evidence that the applicant struggled with both a drug addiction and gambling throughout their marriage (they separated in 2015). There was also a sentence assessment report (dated 20 June 2022) before the sentencing judge.

11. [35]

    The sentencing judge recorded that both Julie and Dianne Shortland gave evidence of being told by the applicant that he suffered from bipolar disorder and/or depression and that he had told his wife that for a period of time he was receiving a monthly injection from a hospital to treat his bipolar disorder. Her Honour also recorded that there was evidence that the applicant attended a school where Richard Cattell was a priest and that Mr Cattell had subsequently been convicted of sexual offences against children at that school. The sentencing judge noted, moreover, that there was evidence from Dianne Shortland that she had been told by the applicant that he had instituted proceedings against Mr Cattell for sexual offences against him, but that the “Court has not however been provided with any further information about this”.

12. [36]

    The sentencing judge found:

13. [37]

    The sentencing judge was otherwise satisfied that the applicant likely suffered from a gambling addiction, notwithstanding the absence of expert evidence on this point. However, citing Johnston v R [2017] NSWCCA 53 (“Johnston”), the sentencing judge noted that where offences are committed to feed a gambling addiction, that addiction will not normally be a mitigating factor in sentencing. Accordingly, although the sentencing judge was satisfied that the gambling addiction played a significant role in the offending, this did little to mitigate his substantial moral culpability.

14. [38]

    The sentencing judge was not satisfied that drug use was a substantial or relevant motivation in the offending, although noted that it may have played a part.

15. [39]

    The sentencing judge allowed a discount of 5% for each offence to account for the somewhat reduced utility of an applicant pleading guilty on the eve of the trial.

16. [40]

    The sentencing judge concluded that there was nothing before the Court that allowed a finding that the applicant was relevantly remorseful for his offending.

17. [41]

    The sentencing judge noted that the applicant was assessed as at a medium to low risk of reoffending and remained guarded as to the applicant’s prospects of rehabilitation.

Ground 2 – miscarriage of justice

1. [42]

   In essence, the applicant contends that a report of a psychologist, such as the report of Dr Pusey, was capable of significantly affecting the outcome of the sentencing proceedings, but was not presented to the Court, and in those circumstances there has been a miscarriage of justice. The applicant contends that the appeal should be allowed on account of a miscarriage of justice which occurred by reason of incompetent or careless representation on sentence, being the failure, by reason of delays and lack of diligence, of the applicant’s solicitor or counsel in the sentencing proceedings to present psychological evidence, such as that from Dr Pusey, or to give the applicant proper advice as to the significance of presenting such evidence on sentence or as to the range of sentences which was likely to be imposed. The applicant says that the evidence before the Court supports the conclusion that the applicant’s representatives were incompetent in these ways.

2. [43]

   In the alternative, the applicant contends that the appeal should be allowed irrespective of whether there was any incompetence of counsel. On this alternative submission, the applicant says that it is unnecessary for the Court to resolve the factual issues which arise from the evidence adduced on appeal going to the nature and extent of the advice given to the applicant on sentence and as to the instructions the applicant gave as to whether an application should have been made to seek to adjourn the sentencing proceedings to enable a psychological report to be prepared and presented to the court.

3. [44]

   In response, the Crown accepts, as a matter of principle, that a miscarriage of justice may arise both by reason of incompetence or carelessness of counsel or where material capable of significantly affecting the outcome of the sentencing proceedings was not presented to the court, irrespective of whether there was incompetence or carelessness of counsel. The Crown emphasises, however, that the principle that an accused is held to the way in which they conducted their case is well-entrenched, such that there is necessarily a high threshold to be crossed before the Court will find that there has been a miscarriage of justice on account of material not being presented to the sentencing court. The Crown contends that this high threshold has not been crossed in the present case as the matters contained in Dr Pusey’s report do not suggest any serious disadvantage nor do they lessen the applicant’s moral culpability for what was a sustained period of elaborately planned and executed fraudulent conduct. At most, the Crown submits, the matters in Dr Pusey’s report have a tangential association with the applicant’s offending conduct. In this regard, the Crown relies upon the applicant’s offending having involved sustained and repeated deception, including the creation of fraudulent documents, over a period of some five years. Such conduct, the Crown says, is not materially mitigated by the matters raised in Dr Pusey’s report.

4. [45]

   There is no doubt that an appeal against sentence can be allowed on the basis of a miscarriage of justice occasioned by the conduct of an offender’s legal representative. So much is clear from the decision of Beech-Jones J (as his Honour then was, Leeming JA and Johnson J agreeing) in John Wayne Tsiakas v R [2015] NSWCCA 187 at [43] (“Tsiakas v R”). As his Honour there observed, a miscarriage of justice of this kind is treated as equivalent to a finding that there was a denial of procedural fairness in the course of sentencing proceedings. Consistent with that, and with the concern in complaints of a denial of procedural fairness being “to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson J), an analogous principle applies to that which applies in conviction appeals, namely that the Court considers “whether there [is] a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial”: Nudd v R [2006] HCA 9; 80 ALJR 614 at [24].

5. [46]

   Beyond this, it is also clear that sentence proceedings may give rise to a miscarriage of justice, irrespective of whether there was any incompetence of counsel, where material evidence was available and relevant to sentence but the offender was deprived of the opportunity to have that material considered in mitigation of sentence. This is so notwithstanding the general rule that, where evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that this evidence was not before the sentencing judge even if the evidence may possibly have had an impact upon the sentence passed: R v Fordham (1997) 98 A Crim R 359 at 377-378.

6. [47]

   Thus, in Pym v R [2014] NSWCCA 182 (“Pym v R”), incompetence of counsel was not alleged but the Court (Fullerton J, Hoeben CJ at CL and Price J agreeing) allowed an appeal against sentence on the basis that the sentencing judge’s findings would not have been open to him had available material addressing the applicant’s mental health been tendered in the sentencing proceedings: at [84]-[85]. In support of that ground of appeal, the offender tendered, and the Court considered, a number of reports of an expert psychiatrist: at [7]. The Court found, at [76], that it was unnecessary for the purpose of resolving the miscarriage of justice ground for the Court to resolve the question of what weight might have been attributed to the unpresented psychiatric material, rather:

7. [48]

   Subsequently, in Rae v R [2019] NSWCCA 284, this Court (Harrison J, as his Honour then was, Macfarlan JA and Cavanagh J agreeing) applied Pym v R and allowed an appeal against sentence where the ground of appeal was miscarriage of justice by reason of incompetence of legal representation in not putting evidence of the offender’s mental health history before the court or seeking an adjournment to obtain such evidence. The offender accepted that he had been told by his lawyers on the day of the sentencing proceedings that the sentencing proceedings would not go ahead that day if he were to get a report from a psychiatrist but maintained that he was not advised that an adjournment could be sought for this purpose. There was also some evidence that he had given specific instructions to go ahead with the sentencing hearing because he wanted to be sentenced by that particular judge. Harrison J held, at [30], that it was unnecessary to resolve the conflicts of evidence as to whether an adjournment should have been requested because (at [37]):

8. [49]

   As is clear from these authorities, irrespective of any question of incompetence of counsel, an appeal against sentence should be allowed where a failure to present material to the sentencing court results in a miscarriage of justice. A number of matters may be relevant to that question, including the circumstances in which the evidence was not before the court and the significance of the evidence on sentencing. Consistent with the approach in Tsiakas v R, the concern of the court is to avoid practical injustice.

9. [50]

   I am satisfied that a report of the nature of the report of Dr Pusey of 5 December 2023 is significant evidence going to the applicant’s subjective case of which the sentencing court was deprived. Had such evidence been before the sentencing court, there would have been a material prospect of the applicant receiving a lesser sentence than that which was imposed on 29 July 2022. This is so for a number of reasons.

10. [51]

    First, whilst the report of Dr Pusey was based upon self-report from the applicant, Dr Pusey administered an assessment (the Inventory of Problems – 29, or IOP-29) which is designed to evaluate the credibility of various psychiatric and/or cognitive symptom presentations. This assessment suggested that there was no reason to doubt the validity of the applicant’s self-reports regarding his mental health and the impact that this had on his functioning and decision-making. Dr Pusey clearly premised his expert opinion upon acceptance of the account of the applicant.

11. [52]

    Second, in two significant respects, the applicant’s self-reported history as told to Dr Pusey was consistent with other material before the Court or with what the applicant had told his mother and wife over a number of years.

12. [53]

    The applicant told Dr Pusey that he had experienced sexual assault by a catholic priest during his childhood. The applicant’s report of sexual abuse was, to some extent, corroborated by the evidence of Mr Woods that Mr Jauncey had contacted the solicitor acting for the applicant in a civil claim arising out of this assault, who had advised that no doctor had been able to examine the applicant (implicitly confirming that the applicant was in fact advancing a civil claim). The applicant’s wife’s evidence was that “a long time ago” and again recently, the applicant had told her that he had been indecently assaulted. The applicant’s mother’s evidence was that in the past year the applicant told her that he was bringing a civil claim arising out of sexual abuse.

13. [54]

    The applicant told Dr Pusey that he had been previously diagnosed with bipolar affective disorder following a suicide attempt in 2011, when he was involuntarily admitted to Manly Psychiatric Hospital, and that he had been diagnosed with depression. He also told him that he had a history of using cocaine and ice and also had a history of gambling. He said that he would usually gamble when depressed, and when manic he believed that he would be able to win large sums of money. He said he had gambled when depressed for 5 years prior to his incarceration, but also said he had gambled more than he should have in 2010. The applicant’s mother gave evidence that she had always known that the applicant was suffering with bipolar disorder and depression and that she was sure that she saw the diagnosis or a prescription for medication. The applicant’s wife’s evidence was that the applicant had struggled with cocaine addiction from “well before the children were born” and had used ice, he was admitted to Manly Psychiatric Hospital after being found alcohol and drug affected, he struggled with drug addiction and gambling throughout their marriage, at times he was very high and at times very low and had depression, and that he was prescribed monthly injections for the bipolar although she did not actually see him being injected.

14. [55]

    Having regard to the assessment carried out by Dr Pusey and his acceptance of the applicant’s account for the purpose of preparing his psychological report, and to the consistency of the applicant’s account over many years as well as the fact that he did appear to be pursuing a civil claim for sexual abuse by Father Cattell, I would not discount the potential significance of Dr Pusey’s report on sentencing. Whilst it is not known whether or not there would have been an objection to the admissibility of a report such as that of Dr Pusey at the sentencing hearing, there is no reason why Dr Pusey’s opinion would have been rejected out of hand simply because it was premised upon a history as reported by the applicant. That is particularly so given that, to some extent, those matters were corroborated and Dr Pusey assessed that there was no reason to doubt the validity of the applicant’s self-reports. Whilst this Court has expressed the need for caution as regards statements made by an offender to psychiatrists or psychologists when no evidence has been given by the offender in the witness box: see eg R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59] (Smart AJ) and [79] (Spigelman CJ), McCallum JA (Hamill and Cavanagh JJ agreeing) held in Lloyd v R [2022] NSWCCA 18 at [47] that, even where an offender does not give evidence, there is no principle of law that “requires the sentencing judge to exercise ‘very considerable caution’ before relying” upon the contents of a report of a mental health professional admitted without objection, qualification as to its use or cross-examination of the author. As these cases demonstrate, in every case, it is for the sentencing court to assess what weight should be given to such evidence.

15. [56]

    Third, Dr Pusey’s opinion was that, at the time of the offending, the applicant’s reported presentation, pathology and functional impairment was consistent with diagnoses of bipolar affective disorder, substance use disorder and gambling disorder. He considered that the substance use and gambling were both driven by the acuity of the applicant’s mood pathology and the “impact this had on his decision making as well as an avoidant means of coping with primarily depressive mood pathology”. Given that the sentencing judge was satisfied that the applicant likely had a gambling addiction that was “directly associated with his offending”, the report of Dr Pusey could have enabled a link to be drawn between the applicant’s bipolar disorder and his offending.

16. [57]

    Dr Pusey also said:

17. [58]

    It is of course possible that the sentencing judge would have found that the applicant’s gambling disorder was not mitigatory, consistent with the general position as set out by Bathurst CJ (Johnson and Fagan JJ agreeing) in Johnston at [36], and would have concluded that the evidence of Dr Pusey was insufficiently specific to conclude that there was a causative link between the applicant’s bipolar disorder and his offending. However, I consider that there was also a significant possibility that the sentencing judge would have found that the applicant’s moral culpability was reduced, or the need for general or specific deterrence was lessened, on account of the role played by his mental health in his offending conduct: see eg DC v R [2023] NSWCCA 82 at [72]-[74] (Yehia J, Rothman and Wilson JJ agreeing).

18. [59]

    Fourth, Dr Pusey’s opinion was that, at the time of his assessment of the applicant on 27 January and 2 March 2023, the applicant continued to suffer from a major depressive disorder and had described experience of pathology suggestive of a diagnosis of post-traumatic stress disorder. There is a significant possibility that the sentencing judge may have concluded that, on this account, a custodial sentence would have weighed more heavily on the applicant: see eg R v Jiminez [1999] NSWCCA 7 at [25] (Hidden and Greg James JJ).

19. [60]

    As to these matters, in the present case, the sentencing judge had no medical evidence or evidence from the applicant as to psychiatric or psychological disorders. Mr Jauncey also disavowed any reliance upon the principles espoused in DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (McClellan CJ at CL) as to the potential relevance of an offender’s mental illness on sentencing. Had a report such as that from Dr Pusey been available, I am satisfied that there is a significant possibility that the stance taken by counsel for the applicant would have been different.

20. [61]

    In saying this, I should not be taken to have reached any view as to the weight to be given to Dr Pusey’s report, or as to the extent to which such evidence should affect the sentencing exercise. It is not for this Court to engage with such matters. It is sufficient, for the purposes of this ground of appeal, that there was a significant possibility that the absence of a report, such as that of Dr Pusey, affected the outcome of the sentencing proceedings.

21. [62]

    In reaching the view set out above, I have not given any weight to the possibility that the applicant’s account of his history of sexual assault as given to Dr Pusey may also have affected the outcome of the sentencing proceedings. There was already evidence before the Court as to this and Dr Pusey’s report does not take matters significantly further.

22. [63]

    Whilst the circumstances in which the evidence was not before the sentencing court are largely not in dispute, there are some important conflicts as between the account of the applicant, and that of Mr Woods and Mr Jauncey. What follows sets out material matters in the chronology that led to the sentencing hearing going ahead without any psychological report.

23. [64]

    From January 2022, the applicant was represented by Mr Woods and Mr Jauncey. Around that time, the applicant informed both Mr Woods and Mr Jauncey that he had a history of depression, self-medicating drug use and bipolar disorder, and had experienced an episode where he had been taken to Manly Psychiatric Hospital. He also told them that he had a violent childhood and suffered from childhood sexual trauma in respect of which he had a civil claim which was ongoing. As to this, Mr Jauncey said in his affidavit that those matters:

24. [65]

    In his oral evidence, Mr Jauncey agreed that it was clear to him that “absolutely” the applicant’s psychological history had the capacity to mitigate sentence, that “absolutely” he appreciated the importance of getting psychological evidence, and that:

25. [66]

    The applicant entered a guilty plea on 3 March 2022. Around this time, the Crown was anticipating that the applicant might spend 2 years in prison. Mr Woods relayed this to the applicant but denied advising the applicant that this was his view. As for Mr Jauncey, he denied ever advising the applicant that he considered that this was realistic or that he conveyed to the applicant a possibility that his sentence may comprise a non-parole period of 2 years. Indeed, he said that it was never his view that this was a realistic outcome and always operated on the assumption that the applicant’s sentence was going to be more than 2 years. He said, however, that the view of the Crown around the time that the applicant entered his plea:

26. [67]

    Some time in late March 2022, Mr Woods applied for an extension of legal aid to qualify a psychologist. This was granted on 19 May 2022. There is no evidence of any attempt being made by Mr Woods to instruct a psychologist until 3 June 2022, when he contacted Dr Derek Gilligan who agreed to examine the applicant and prepare a report. It should be observed that Dianne Shortland, the applicant’s mother, had contacted Mr Woods on 2 June 2022, suggesting that Dr Pusey might be a suitable psychologist to instruct, then, on 3 June 2022, contacted Mr Woods again to suggest Dr Gilligan.

27. [68]

    The problem was, however, that Dr Gilligan was fully booked into late July – early August, and the applicant’s sentencing hearing was listed for 30 June 2022. In these circumstances, on 3 June 2022, Mr Woods wrote to Mrs Shortland (who was a conduit for communication with the applicant):

28. [69]

    Dianne Shortland then contacted Dr Gilligan, indicating that the applicant was prepared to adjourn the hearing and wait until a report could be finalised. On 7 June 2022, Dr Gilligan offered an appointment on 2 August 2022. On 9 June 2022, Mr Woods confirmed that appointment, indicating that he had instructions to seek an adjournment of the sentencing hearing. However, later on 9 June 2022, it appears from an email of that date that the applicant telephoned Mr Woods and instructed him not to seek to adjourn the matter until it could be confirmed that the adjourned sentencing hearing would be set down on a date in August.

29. [70]

    There was then a conversation between the applicant and Mr Woods on 13 June 2022, when Mr Woods told him that an adjournment was likely to result in a hearing in December or possibly after the Christmas period. The applicant says that Mr Woods said that they should adjourn the hearing but that it was impossible for the reports to be completed before the hearing on 30 June 2022. The applicant says that he told Mr Woods that he did not want to adjourn the hearing and that his anxiety was “that bad I can’t deal with another 6 months adjournment”. Whilst the applicant says that Mr Woods was going to get back to him as to whether the report could be ready before the hearing on 30 June 2022, nothing appears to have followed from that.

30. [71]

    On 13 June 2022, Dianne Shortland sent an email to Mr Woods and informed him that the applicant had asked her to tell Mr Woods that he had decided not to adjourn the sentencing hearing. She added:

31. [72]

    The following morning, Mr Woods wrote to Dianne Shortland:

32. [73]

    Dianne Shortland responded that day. She told Mr Woods:

33. [74]

    Whilst these emails suggest that some advice was given by Mr Woods to the effect that it was not realistic for Mr Shortland to receive a sentence which would lead to his release at the sentencing hearing on 30 June 2022, there was no evidence as to what advice was in fact given. Mr Woods, in his affidavit, addressed these emails but his evidence did not go further than implicitly accepting that he had given advice “concerning Mr Shortland’s expectations for release” and that this advice was “not controversial”. The applicant said in his oral evidence that Mr Woods told him on the telephone (he did not say when) that he would be serving a maximum of 2 years in custody and possibly the last 6 months by intensive correction order. He also suggested that this was conveyed in writing, but none of the communications in evidence supported this.

34. [75]

    On 28 June 2022, the Crown’s submissions were sent to Mr Woods. On the same day, Mr Woods forwarded these to Mr Jauncey with a covering email saying:

35. [76]

    In his oral evidence, Mr Jauncey said that this was consistent with what he had said “at the beginning when we received instructions” which seems to be around the time of the guilty plea.

36. [77]

    On the morning of 30 June 2022, Mr Jauncey spoke with the applicant in the cells at the Sydney District Court. There are conflicting accounts of this conversation, as between the applicant and Mr Jauncey.

37. [78]

    In his affidavit, Mr Jauncey said that:

38. [79]

    Mr Jauncey said that the applicant was “stressed” at this conference.

39. [80]

    The applicant said that the conversation with Mr Jauncey on 30 June 2022 was a brief conversation and he was unhappy that he had not heard from Mr Jauncey for four months. He said he asked whether Mr Jauncey had the records from his civil claim relating to sexual abuse, or his mental health history, and Mr Jauncey told him that it was under control and that he would not be calling the applicant to give evidence but would be calling his mother and wife. He said he did not mention an adjournment. The applicant said in his affidavit that he was never told by either Mr Jauncey or Mr Woods exactly what prejudice his case would suffer if no psychological report was tendered but that he worked that out himself. He also said:

40. [81]

    Whilst it was put to the applicant in cross-examination that he had been advised that this was not realistic, the applicant’s affidavit and oral evidence as to this being his subjective belief was not challenged.

41. [82]

    Ultimately, the evidence established that the applicant’s subjective belief was that he would receive a non-parole period of no worse than 2 years. It is in the context of that belief that he gave instructions not to adjourn the sentencing proceedings to obtain a psychological report. On the evidence before the Court, that belief was plainly wrong.

42. [83]

    The evidence as to what the applicant was advised as to the likely outcome on sentencing was far from satisfactory. Whilst the email from Mr Woods of 14 June 2022 (together with his affidavit evidence) suggests that he advised the applicant that it was not realistic to expect that he would be immediately released at the sentencing hearing on 30 June 2022, and the email of 28 June 2022 suggests that Mr Jauncey and Mr Woods’ advice was that the applicant would spend “significantly” more than two years in prison, neither Mr Jauncey nor Mr Woods gave any clear evidence as to what advice they gave the applicant as to his likely sentence. In particular, there is no evidence that the applicant was advised that there was any prospect that he would receive a sentence with a non-parole period of 6 years and 6 months. Nor is there any evidence that the applicant was advised as to his likely sentence at any time after early March 2022, when he was being advised in the context of entering a plea.

43. [84]

    There is also no evidence that the applicant was advised that a psychological report may have significantly mitigated the applicant’s sentence. Whilst the applicant himself had reached the view that such evidence was important, there is no evidence that the reasons why this was so, or the manner in which it may have impacted the sentencing process, was explained to him.

44. [85]

    In the unusual circumstances of this case, I am satisfied that there was a miscarriage of justice. There was practical unfairness to the applicant. In this regard, I have found it unnecessary to reach any conclusion as whether or not Mr Jauncey advised the applicant to seek an adjournment on 30 June 2022. I am satisfied that the potential significance to the sentencing proceedings of a report such as that from Dr Pusey, when considered together with the circumstances in which the applicant came to give instructions not to adjourn the sentencing proceedings on 30 June 2022, is such that ground 2 should be allowed without considering whether there was any incompetence of counsel. As was the case in Rae v R, the decision not to seek an adjournment was not so much a forensic decision, as a decision taken by the applicant for perceived, but erroneous, practical reasons, being his belief that he was likely to be given a sentence which would lead to him being released on parole prior to the date of any adjourned hearing.

45. [86]

    I am not satisfied that the applicant was given any advice in the lead up to the sentencing hearing (as opposed to when he pleaded guilty) as to the likely sentence he would receive, or as to the significance of obtaining psychological evidence. It was in in these circumstances that the applicant, with a subjective but erroneous belief that he would receive a non-parole period of no worse than 2 years, gave instructions not to adjourn the sentencing proceedings. Thus, whilst in some cases the fact that an applicant gave specific instructions not to adjourn proceedings would lead to a conclusion that there was no practical unfairness, this is not such a case.

46. [87]

    Ground 2 should be upheld. Both the applicant and the Crown agreed that if ground 2 were upheld, the matter should be remitted to the District Court for re-sentence by the sentencing judge. I agree.

Ground 3 – manifest excess

1. [88]

   Given my conclusion on ground 2, it is unnecessary to consider ground 3.

Conclusion

1. [89]

   In light of my reasons as set out above, I propose the following orders:

   1. (1)

      Time for filing application for leave to appeal extended to 15 December 2023.

   2. (2)

      Leave to appeal granted.

   3. (3)

      Appeal allowed.

   4. (4)

      Set aside the sentence imposed on the applicant on 29 July 2022.

   5. (5)

      Remit the proceedings to the District Court for re-sentence by Harris DCJ.

2. [90]

   CAVANAGH J: I have had the benefit of reviewing the draft provided by Stern JA. I agree with the orders proposed by her Honour.

3. [91]

   In some circumstances (limited as they might be) this Court may allow an appeal arising out of a failure to tender relevant evidence on the sentencing hearing even when the absence of such evidence was consistent with the instructions of the offender.

4. [92]

   As identified by her Honour, the test must always be whether there has been a miscarriage of justice. For the reasons identified by her Honour, that test is well satisfied in this matter.

5. [93]

   In a case such as this, a question arises as to whether the fact that the offending conduct arose out of a gambling addiction (if that be so) might be relevant to the exercise of the sentencing discretion, rather than merely providing an explanation for the conduct. In Johnston, the Court per Bathurst CJ (Johnson and Fagan JJ agreeing) considered that, whilst a gambling addiction might provide an explanation for the conduct, it could not be viewed as a mitigating circumstance.

6. [94]

   For my part, I would not view that approach as a hard and fast rule.

7. [95]

   Financial fraud and deception often (but not always) have as their origin a gambling habit. The mere fact that the offender engaged in the conduct to satisfy his desire or interest in gambling could hardly be viewed as a mitigating circumstance.

8. [96]

   However, in my view, the position may be different if it is established that the offender is suffering from a recognised psychological disorder which is causally relevant to the offending. Conventionally, the existence of psychological disorders is determined with reference to the Diagnostic and Statistical Manual of Mental Disorders (5th edition) (“DSM-5”). DSM-5 recognises a gambling disorder in the same way as a substance use disorder. The definition of a gambling disorder in DSM-5 is a persistent and problematic gambling behaviour pattern leading to significant distress and impairment.

9. [97]

   The Court often receives evidence about disorders such as substance use disorders, personality disorders and, of course, the myriad of other psychological conditions which may be relevant to the offending. As I understand the medical evidence, a gambling disorder is a recognised psychological illness, just as a substance use disorder is so recognised.

10. [98]

    In our society access to gambling in its various forms has become more pervasive, leading necessarily to more addictive behaviour.

11. [99]

    Whether an offender’s gambling might be viewed as a psychological condition will of course be a matter for evidence but it does not seem to me that the Court should simply reject the existence of such a disorder as having any significance other than context or background.

12. [100]

    Whether an offender suffers from such a disorder would always be a matter for evidence and whether it has any impact on the exercise of the sentencing discretion must again always depend upon the particular circumstances of the case including the nature and circumstances of the offending and the nature and circumstances of the gambling and its relationship with the offending.

13. [101]

    I would only say that to the extent that it might be said that Johnston stands for the proposition that a recognised psychological disorder, such as a gambling use disorder, can never be taken into account as a mitigating factor in financial crimes, I respectfully disagree. It is unnecessary to say anything further as this Court is not engaged in re-sentencing.

14. [102]

    SWEENEY J: I agree with the orders proposed by Stern JA and with her Honour’s reasons for proposing those orders. I also agree with the observations of Cavanagh J about gambling.