Hildebrand v R (No. 2)

KIRK JA: I agree with Coleman J.

SWEENEY J: I agree with Coleman J.

COLEMAN J: Vaughan Mark Hildebrand (the applicant) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Tupman DCJ (the sentencing judge) in the District Court on 10 February 2022. The applicant was sentenced for multiple Commonwealth and New South Wales offences. He received an effective term of imprisonment of 20 years, commencing on 31 May 2017 expiring 30 May 2037. A non-parole period of 15 years was fixed, meaning that the first date that the applicant is eligible for release to parole is 30 May 2032.

The applicant was self-represented on the appeal. A Notice of Intention to Appeal was filed on 11 February 2022. The Notice of Appeal was filed on 27 October 2025. The appeal is out of time. The applicant requires leave to extend the time to file the Notice of Appeal: r 3.5(5) Supreme Court (Criminal Appeal) Rules 2021 (NSW).

For the reasons below, I would extend the time for the applicant to file the Notice of Appeal, grant leave to appeal against sentence, but dismiss the appeal.

The Court has a discretion to extend the time for the filing of a Notice of Appeal. Whether an extension is granted is to be determined by the interests of justice in the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [32]. In exercising this discretion, the Court should have regard to the prospects of success of the appeal, addressed by reference to s 6(3) of the Criminal Appeal Act 1912 (NSW): Kentwell at [33]-[34], as well as the explanation given for the delay: Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 at [93].

The applicant filed an application for an extension of time to give notice of intention to appeal. In it, he says he was unable to secure legal representation after Legal Aid denied him funding. He had appealed the denial but was unsuccessful. The applicant also said he had contacted the New South Wales Bar Association and the Law Society of New South Wales for pro bono assistance to no avail.

The applicant also spoke of the difficulties he faced whilst incarcerated, particularly in conducting research and having material printed. The applicant remains self-represented.

In the interest of finality, I propose to grant leave for the applicant to file the Notice of Appeal out of time.

The applicant was originally sentenced by the sentencing judge for the same offences on 27 September 2019 (the first sentence judgment). He had pleaded guilty to the 26 charges brought against him (with 18 additional matters being taken into account on 10 separate additional offence documents under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 16BA of the Crimes Act 1914 (Cth)). He appealed to this Court. That appeal was heard on 7 October 2020 with the decision being handed down on 15 February 2021 (Hildebrand v R [2021] NSWCCA 9) (the first appeal).

In the first appeal there were 6 grounds of appeal. They included grounds going to accumulation of the sentences imposed, error in the sentencing judge’s assessment of the objective gravity of the offending, and manifest excess of the sentence imposed. One ground, which asserted error by the sentencing judge having taken into account certain Commonwealth charges on a Form 1 attached to charges brought for NSW offences, was upheld. The Crown had identified this issue in its written submissions on that appeal. This led to an amended ground 3. The Crown effectively conceded error and the appeal on this ground was allowed. All the remaining grounds were dismissed. The sentences were quashed and the matter was remitted to the District Court for resentencing. The same sentencing judge conducted the resentencing. It is the sentence imposed by her Honour following the resentencing hearing that is the subject of this appeal.

The first sentence judgment set out in detail the facts of the offending. In the first appeal, Davies J summarised the offending from [43]-[215]. The number of charges and nature of the offending conduct led to each the first sentence judgment and the judgment of this Court on the first appeal being lengthy. There was no challenge to any of the factual findings which detailed the offending either in the first appeal, nor in this appeal. The nature of the grounds of appeal raised on this appeal do not require a detailed analysis of the facts of the offending. I therefore do not intend to repeat the details of the offending except in so far as it is relevant to a ground of appeal.

In summary, the offending involved the applicant attempting to blackmail young women known to him to provide explicit photographs of themselves to him, or provide sexual favours, under the threat of intimate images being disseminated if his demands were not met. The applicant created several false online identities, and in some cases, the victims did not know that he was using these false identities and confided in him about the demands they had received online from those false identities. In fact, the demands were coming from the applicant.

The offending took place between 2007 and 2016. The applicant was aged between 19 and 28 years during his offending. He was a serving NSW police officer from December 2011.

The sentencing judge annexed and incorporated by reference into the ROS the first sentence judgment. This included her Honour’s summaries of the charges to which the applicant had pleaded guilty, the facts of the offending and her findings on sentence, including as to the objective seriousness of the offending.

Three Commonwealth sequences, being sequences 25, 36 and 52 had been wrongly attached to New South Wales charges using the Form 1 procedure. The resentence involved a consideration of the impact on the overall sentence with those Commonwealth matters now being taken into account under s 16BA of the Crimes Act 1914 (Cth) for other Commonwealth offences to which the applicant had pleaded guilty.

After reviewing the procedural history of the matter, her Honour referred to the judgments in this Court from the first appeal. Her Honour referred to [244] of the judgment of Davies J, where his Honour said:

The sentencing judge then noted that all remaining grounds of appeal in the first appeal were dismissed.

The sentencing judge also referred to passages from the judgment of Garling J in the first appeal. Her Honour referred to [275] and [279] of Garling J’s judgment where his Honour said of the first sentence judgment:

The sentencing judge then said in the ROS:

The sentencing judge accepted the Crown’s submission that Dr Paul Pusey’s (Dr Pusey) diagnosis of post-traumatic stress disorder and substance abuse disorder had already been diagnosed by Dr Richard Furst (Dr Furst) and was taken into account on the first sentence. She said that there was nothing new in Dr Pusey’s report in relation to those two issues.

Further, her Honour held that the issue of alleged childhood sexual abuse was disclosed by the offender to Dr Furst and addressed by him as having no real connection with the offending behaviour such as to reduce the offender’s moral culpability. She accepted the Crown’s submissions that notwithstanding Dr Pusey’s more recent report, there was nothing in the evidence which would support a finding that any child sexual abuse suffered by the applicant had any relevant connection to the offending.

The sentencing judge “specifically reject[ed]” Dr Pusey’s opinion that what she had in the first sentence judgment described as “clearly manipulative and cunning behaviour” on part of the applicant “[m]ay in fact reflect an incoherence in relation to his view of self which impair[ed] his consequential thinking as well as his functional capacity within his interpersonal domain of functioning”. She said that if Dr Pusey’s opinion was that the offending may have “amounted to incoherent behaviour and impaired reasoning about consequences, caused at least in part by childhood sexual abuse”, there was nothing in the facts surrounding each of the offences to support that opinion.

Her Honour said:

Her Honour rejected the submission that any delay in the resentence of the offender, if established, impacted the appropriate sentence and any non-parole period. The sentencing judge did not accept that there had been any additional significant impact on the applicant within the prison system following the Court of Criminal Appeal decision when he was effectively treated again as a remand prisoner rather than as a sentenced prisoner.

A submission was made by counsel for the applicant on resentence that the sentencing judge might revisit the finding of special circumstances to increase the parole period to be served by the applicant. That submission was said to be based upon a consideration of his mental health, the conditions of his incarceration, and the fact of the accumulation of sentences. The sentencing judge rejected these submissions. Her Honour said that these matters had all been considered in the original sentence and, specifically with respect to the accumulation of sentences, was raised and rejected in the Court of Criminal Appeal. Her Honour said nothing tendered by the applicant on resentence, nor any submissions made on his behalf, caused her to alter any of the findings made in the first sentence judgment.

Her Honour said:

Her Honour said that this meant that the only sentences which needed to be revisited and considered were those for sequences 55, 37 and 27 (being the State offences in relation to which the Commonwealth offences were impermissibly taken into account), and sequences 18 and 30 (being the Commonwealth offences which now had the additional Commonwealth offences to be taken into account). Her Honour then went on to consider each of those sequences and impose sentences for them. I do not consider it necessary to set out the detail of her Honour’s discussion with respect to those sequences as there is no complaint in any of the grounds of appeal with respect to how she did so, nor the length or structure of the sentences she imposed.

As observed, the effective overall sentence imposed was one of 20 years imprisonment with a non-parole period of 15 years.

The applicant sought to read two documents styled as “affidavits” dated 23 August 2025 and 7 September 2025. I say these documents were styled as affidavits because they have simply been signed by the applicant and not attested before an appropriate person. Nevertheless, as the applicant was self-represented, they were received, with [11]-[14] of the document dated 7 September 2025 being treated as submissions only. It was read on the usual basis.

The “affidavit” dated 23 August 2025 attached a new psychological report of Dr Pusey dated 24 January 2025, and a new psychiatric report of Dr Furst dated 2 May 2025. The reports are new or fresh evidence and are related to ground 4 which is discussed below. The applicant did seek to suggest that some of the reports were relevant to ground 1 (being a denial of procedural fairness). [1] I will deal with the use of those reports, or parts of them, in support of that ground below.

The Crown read an affidavit of Steven Thomson sworn 20 October 2025 on the usual basis. It annexed documents relevant to the applicant’s time in custody, including records of assaults on him and an updated custodial record.

There are four grounds of appeal:

It is appropriate to deal with this ground first. In Lee v Huo [2026] NSWCA 15 (Lee v Huo), the Court of Appeal was dealing with an appeal raising, amongst other grounds, an allegation of apprehended bias. At [52] Bell CJ, with whom Mitchelmore and Stern JJA agreed, referred to Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55. There, Kirby and Crennan JJ, with whom Gummow ACJ agreed at [3] said, at [117]:

In Lee v Huo, because the ground raising bias was formulated in a composite fashion drawing on other grounds of appeal taken together and other supplementary arguments, it was expedient, “exceptionally”, to deal with those other grounds first (Bell CJ at [53]). In this appeal, the ground of bias stands alone. Whilst the ground of a denial of procedural fairness, if established, may also strike at the validity and acceptability of the trial and its outcome, that is not always the case (see Smith v R [2024] NSWCCA 59 and the authorities discussed by Basten AJA at [42]-[44]). In accordance with authority, and the logic of doing so referred to, Ground 2 should therefore be dealt with first.

The test for determining an allegation of apprehension of bias is well known. It is whether a fair-minded person might reasonably apprehend or suspect that the judge might not bring an open and impartial mind to the resolution of the issues: Webb & Hay v R (1994) 181 CLR 41; [1994] HCA 30 per Mason CJ and McHugh J at [47]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6].

In Tarrant v R [2018] NSWCCA 21 the Court (Basten JA, R A Hulme J and Hidden AJ) said at [9]:

The applicant in his written submissions, also referred to the passage from Tarrant which referred to Rouvinetis v Knoll [2013] NSWCA 24 where at [24] Basten JA said:

The applicant confirmed in the hearing that he was asserting an apprehension of bias, not that the sentencing judge was actually biased. [2]

The applicant relied on comments made by the sentencing judge at a directions hearing on 31 May 2021 and the sentence hearing on 16 August 2021. He also said he was relying on the ROS to support his argument that there was a reasonable apprehension of bias on her Honour’s part.

The applicant focused on several parts of the transcript containing comments made by the sentencing judge during the directions hearing on 31 May 2021 to schedule the resentence hearing. Those extracts show, he said, that her Honour was critical of the Court of Criminal Appeal. These parts of the transcript reflect comments made by her Honour that the Court of Criminal Appeal, after determining that there had been error, could have resentenced the applicant rather than remitting the matter back to her Honour. The applicant referred to several passages of the transcript which he says reflected a criticism by her Honour of the Court of Criminal Appeal which indicated a displeasure at her having to resentence the applicant. These comments include the following:

In addition to those matters which the applicant submits show her Honour being unhappy with the task at hand, the applicant referred to other comments of the sentencing judge at the directions hearing which, he submits, were indicative of her failing to approach the resentencing exercise afresh. These included her Honour saying:

The applicant submits that this comment by the sentencing judge denied him “the fundamental right of the resentencing exercise, that is for her Honour to start the sentencing process afresh. Whilst the Court of Criminal Appeal quashed the sentence imposed… due to a form one error, her Honour subsequently narrowed the field of the resentencing to only the form 1 errors…” (Applicant’s Written Submissions (AWS), p 4).

The applicant referred to an additional passage at the directions hearing being an exchange between the then Counsel for the applicant and the Bench:

The applicant submits that having regard to the test for apprehension of bias and that his Counsel had to clarify whether she could make further submissions, “it stands to reason a lay observer could conceive her Honour had a prejudged mind” (AWS p 5).

The applicant also referred to the following passages in the same vein. The italicised part of the passage was not included in the applicant’s reference:

The sentencing hearing took place on 16 August 2021. [3] Dr Furst’s report of 30 January 2019 was again tendered. A report of Dr Pusey of 1 August 2021 was also tendered, as were two letters from the applicant. The applicant gave evidence at the sentence hearing and was cross-examined.

Towards the end of the sentencing hearing, her Honour said:

The applicant refers to the italicised portion of that quote as additional evidence of the apprehension of the sentencing judge’s bias. The applicant submits that the conduct of the sentencing judge, and the comments that I have referred to, reflected the fact that she simply imposed the same sentence as in the first sentence proceedings when the first sentence had been quashed by the Court of Criminal Appeal. This, he submitted, manifested the apprehension of bias. He submitted that the sentencing judge came into the resentence hearing thinking her previous sentence had been “endorsed” by the Court of Criminal Appeal and had a prejudged mind and did not sentence him afresh. This was regardless of the additional material in the second sentence proceedings.

The Crown accepted in the Crown Written Submissions (CWS) at [60] that the sentencing judge “expressed that her preference would have been for the Court of Criminal Appeal to resentence the applicant”, however, at no stage did she express a view that she was not open to further submissions, or the possibility of revisiting any previous findings. Rather, the Crown submitted that the sentencing judge made it clear that the applicant was to be resentenced afresh and expressly invited further submissions. The Crown referred to the passage I have extracted at [44] above emphasising the last comment of her Honour. The Crown noted that in the passage extracted at [46] above, her Honour expressly referred to her “first thought, in the absence of any further submissions…”.

The Crown submitted that it was clear from the exchanges referred to by the applicant that the sentencing judge had invited further submissions from each party if the legal representatives were of the view that such submissions should be made. Her Honour indicated that it was unlikely she was to make different findings in the absence of any other evidence. The Crown noted that the parties did not submit that her Honour should make any different findings with respect to objective seriousness, and the submissions made by the applicant’s counsel and the second sentence hearing were confined in nature. The Crown submits that her Honour made it clear that further submissions could be made and fairly forecasted that if they were not, it was likely that her previous findings would be adopted.

The Crown submitted that the additional evidence tendered by the defence was dealt with by her Honour in the ROS. In those passages her Honour made findings, recited at [20] above, that she did not consider that the additional evidence tendered by the applicant on resentence caused her to change her findings made on the first sentence.

The Crown submits that there is nothing in her Honour’s conduct, or in the ROS, which would indicate any apprehension of bias.

I agree with the Crown submissions.

I consider that it is clear from a reading of the whole of the transcripts of the directions hearing and the sentence hearing that the sentencing judge did invite additional submissions, but made it clear that absent such submissions, she was likely to make the same findings as in the first sentence judgment. Read fairly, although expressed in what could perhaps be considered robust language, her Honour’s comments should be considered her tentative views on the findings she would likely make absent further submissions (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [112]). These views were mostly expressed in the directions hearing to set the matter down for resentence.

The italicised parts of the passage extracted by the applicant referred to at [48] above do not reflect the full exchange between the applicant’s counsel and her Honour. It is important to assess the passages relied upon by the applicant in the full context of the transcripts and remarks rather than cherry pick parts of them: Crackin’ Snack Pty Ltd v Gameking Australia Pty Ltd [2024] NSWCA 182 at [85] and [92]. The exchange occurred at the conclusion of submissions from each of the parties, including by the applicant’s counsel. The applicant’s counsel had provided written submissions on resentence which did not cavil with her Honour’s finding in relation to objective seriousness in the first sentence judgment. The applicant’s counsel noted that she only raised four issues – being subjective matters. They included hardship in custody, special circumstances and delay.

As to delay, it was explained by counsel for the applicant that the issue was really the fact that the applicant had to go back into remand and his uncertainty about what was happening in relation to that. She submitted that if there is a delay where there is uncertainty, the court may take that into account. Her Honour then said:

This passage reflects no more than the circumstances in which the error occurred on the first sentencing hearing which resulted in the first appeal. The applicant’s counsel then continued to make submissions. It was at the end of that debate between the Bench and bar table that her Honour made the comments referred to in [44] above. She continued shortly after in a passage not referred to by the applicant:

This passage is illustrative of the debate that occurred at this hearing as to the issues which had arisen on resentence. Her Honour was very familiar with the case having undertaken the first sentence. The Court of Criminal Appeal in the first appeal had only found error on the limited basis discussed. None of the other grounds of appeal, as I have mentioned, were found to have any merit and were dismissed. Her Honour was expressing the view that the issues were limited to considering the impact of the effect on the overall sentence of the sequences which had erroneously had Commonwealth matters taking into account using the State Form 1 procedure and, on resentence, would be taken into account on Commonwealth counts. This was in the context where there was no relevant challenge to the sentencing judge’s factual findings from the first sentence. It was an appropriate matter to flag with the party’s legal representatives. Neither of them sought to dissuade her Honour from that course or said that this was an inappropriate way to consider the issues that would arise.

Additional material had been put before the Court by the applicant and further submissions made by his counsel. Her Honour exposed her reasoning with respect to the additional materials and submissions in the ROS.

I do not consider that the applicant has established that a fair-minded person might reasonably apprehend or suspect that the sentencing judge might not bring an open and impartial mind to the resolution of the issues which would arise on resentence. In light of this Court’s reasons in the first appeal, it is unsurprising absent any relevant new or fresh evidence, that there was no challenge to her Honour’s factual findings, including as to the objective seriousness of the offending. The only issues raised by the applicant’s counsel were subjective matters. Her Honour considered those in the ROS and found that there was nothing in the new material which caused her to change her findings from the first sentence.

I do not consider her Honour’s remarks concerning whether this Court should have resentenced the applicant rather than remit it back to the District Court are evidence of apprehended bias. It was a long and complex sentence, and her Honour was no doubt managing a busy workload. Having another task added can sometimes lead to expressions of frustration, but that does not mean the task is not completed fairly and with an open mind.

In so far as the applicant refers to the ROS and the fact that the same sentence was imposed reflects an apprehension of bias, it must be kept in mind that an assessment of the question of whether there was apprehended bias by reference to the reasons for judgment impermissibly directs attention to whether the judge had in fact prejudged the issue. In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [67], Gummow ACJ, Hayne, Crennan and Bell JJ said:

As observed above, the applicant specifically conceded he was not alleging actual bias, but only apprehended bias. His complaint that by adopting the path the sentencing judge did on resentence, in the manner she did and reaching the result that the same sentence was imposed, demonstrates that the sentencing judge prejudged the matter and manifested apprehended bias, impermissibly confuses the relevant inquiry.

I would grant leave to argue this ground but dismiss it.

The essence of the applicant’s complaint in this ground is that the rejection by the sentencing judge of the diagnosis that he had an unspecified paraphilic disorder was procedurally unfair, such as to amount to an error.

The applicant referred to the report of Dr Furst of 30 January 2019. That report was tendered in the first sentence and on resentence. On page 9 of that report under the heading “Diagnosis (DSM-5)”, Dr Furst said:

He submitted that the sentencing judge should have warned his legal advisors that she was not going to accept this diagnosis, which the Crown had not disputed in its written submissions on the appeal. The applicant says this is reflected in [222] of the first sentence judgment where the sentencing judge said:

The sentencing judge did return to this issue at [240]-[244] of the first sentence judgment where she said:

It is plain, therefore, from these passages that the sentencing judge did not accept that the diagnosis of unspecified paraphilic disorder was relevant to the facts that she found with respect to the commission of the offences.

The applicant notes that on resentence, together with Dr Furst’s report, an additional report of Dr Pusey dated 1 August 2021, a psychologist, was tendered. He says this report also diagnosed him as suffering from unspecified paraphilic disorder. At [56] of that report Dr Pusey said:

At the resentence hearing on 16 August 2021, there was discussion with counsel for the applicant about [70] of Dr Pusey’s report. Dr Pusey there said:

Having regard to the manner in which that paragraph is expressed, perhaps unsurprisingly, her Honour said that she did not understand that paragraph. She said:

The applicant complained that the sentencing judge did not tell his counsel that she was rejecting the finding of unspecified paraphilic disorder. He submitted that he gave evidence during the resentencing hearing and was not cross-examined by the Crown on that diagnosis. He submitted that her Honour was bound to give warning/notice that she intended to reject the diagnosis (which he said had been accepted by the Crown), and if she had given that warning, then Dr Furst and Dr Pusey could have been called. The applicant submitted that the diagnosis lowers his moral culpability and his suitability as a vehicle for specific deterrence. He submitted that he was denied procedural fairness and is entitled to a re-hearing of the sentence proceedings (citing O’Neal-Show v R [2010] NSWCCA 42 at [27], [50] and [51]; Heath v R [2016] NSWCCA 24 at [40]-[41] and Lehn v The Queen (2016) 93 NSWLR 205).

The Crown referred to [240]-[244] of the first sentence judgment which I have extracted at [69] above. As I have observed, in those paragraphs her Honour did not consider that the diagnosis of unspecified paraphilic disorder fitted the facts as she found them.

The Crown referred to the paragraph of Dr Pusey’s report extracted at [71] above. It submitted this was not a diagnosis of unspecified paraphilic disorder, rather an observation that he was not aware of anything which could question the validity of Dr Furst’s diagnosis.

The Crown noted that the applicant’s counsel did not make any submissions with respect to the diagnosis of paraphilic disorder, or its impact on sentence, in the resentence hearing. No submissions were made that the diagnosis should be accepted by the sentencing judge notwithstanding her Honour’s earlier conclusions in the first sentencing judgment. The Crown noted that it was expressly recognised by the applicant’s counsel in their written submissions on resentence that the sentencing judge did not accept the offender met the diagnostic criteria of unspecified paraphilic disorder.

The Crown noted that the issue of the applicant’s alleged paraphilic disorder was not included in the subjective matters that were raised by the applicant’s counsel during the resentencing proceedings as warranting a differing or additional finding to those made in the first sentence judgment. The Crown submitted that it was open to the applicant’s counsel to re-agitate a submission that the sentencing judge should, contrary to her Honour’s earlier conclusions, accept the diagnosis of unspecified paraphilic disorder and/or that the diagnosis was a material contributing factor to the offending in this case. The Crown submitted that by reason of the first sentencing judgment, the applicant and his counsel were clearly on notice of the sentencing judge’s conclusions with respect to this matter. Further, the sentencing judge had made it plain that absent any other evidence for different findings, it would be unusual in the circumstances for her to make different findings to those contained in the first sentencing judgment.

The Crown’s written submissions on resentence were that nothing had changed since the first sentencing judgment with respect to the applicant’s mental health issues.

The Crown submitted that in the circumstances, the contention that the sentencing judge was required to give a specific warning or notice in the resentence hearing that she intended to reject the diagnosis of a paraphilic disorder, and that her Honour’s failure to do so resulted in any procedural unfairness, should be rejected.

The Crown also submitted that the assertion by the applicant that the Crown ought to have cross-examined him in the resentencing proceedings with respect to Dr Furst’s diagnosis should be rejected. It is unclear what purpose such cross-examination would have had in the circumstances where it was Dr Furst, not the applicant, who had made the diagnosis, and the sentencing judge had already indicated that her conclusion was that the offending was not a manifestation of that diagnosis.

The Crown submitted that these were not circumstances where the sentencing judge made findings adverse to the applicant without warning of an intention to do so. The applicant was plainly on notice of the sentencing judge’s rejection of Dr Furst’s diagnosis and the likelihood that, absent additional evidence, she would not change her findings to those made in the first sentence judgment.

In response to the Crown’s written submissions, the applicant submitted that the Crown had always proceeded accepting that he had been diagnosed with paraphilic deviancy. In those circumstances, he submitted he could not have had warning that the diagnosis was being rejected. He refers to his evidence in chief on the resentence where his counsel led from him Dr Furst’s diagnosis of unspecified paraphilic disorder. He noted that the sentencing judge did not interject that she had rejected the diagnosis.

The applicant submitted that it only needed to be established on the balance of probabilities that he suffered from a paraphilic disorder and that if the sentencing judge was going to reject that diagnosis, she should have given prior warning.

A consideration of the application of the principles of procedural fairness in analogous situations can be found in Smith v R [2024] NSWCCA 59 at [6]-[10] per Adamson JA and [34]-[44] per Basten AJA. As a basal proposition, it can be accepted that it would be a denial of procedural fairness if a sentencing judge, without alerting the parties to the possibility that he or she would not accept the joint position of the parties, took a position contrary to that joint position thereby depriving the parties the opportunity to address that possibility.

I do not accept the applicant’s submissions that on resentence, the sentencing judge took a position or gave an indication prior to the imposition of the sentence with respect to the diagnosis of unspecified paraphilic disorder and imposed a sentence on him contrary to that position or indication, without giving his counsel an opportunity to address her. Nor do I accept the sentencing judge was required to give any specific indication that she did not accept Dr Furst’s opinion on that matter.

The starting point is her Honour’s conclusions in the first sentence judgment with respect to the applicant’s paraphilic deviancy not correlating to the facts of the offending as she found them at [240]-[244]. There was no ground of appeal in the first appeal challenging these findings.

It may be accepted that her Honour’s findings were unclear as to whether she rejected Dr Furst’s diagnosis or simply found that on the facts of the offending, it did not apply. I consider the latter is the position on a fair reading of her Honour’s remarks. In the paragraphs identified in [69] above, her Honour compares and contrasts the characteristics of the diagnosis with the facts of the offending. In [243] of the first sentence judgment she says:

When read with the balance of the ROS relevant to this point, I consider that where her Honour says that the diagnosis is “not actually available”, she is re-stating her view that the facts of the offending as she found them were inapposite to the characteristics of such a condition as described by Dr Furst.

The applicant says that the Crown did not challenge the diagnosis. So much can be accepted for the first sentence proceedings. However, the question of procedural fairness here arises in the context of the resentence proceedings. The sentencing judge had made it plain in the directions hearing on 31 May 2021 that absent further material and submissions, and in light of the Court of Criminal Appeal’s judgment in the first appeal, she was unlikely to make any different findings. It can be readily inferred that this included findings with respect to the applicant’s mental health condition and any impact that may have on the sentence to be imposed. The applicant’s counsel made no submissions in the resentence hearing raising the diagnosis of paraphilic disorder, its asserted material contribution to or connection with the offending conduct and any impact on the applicant’s moral culpability for that conduct.

It may have been different if the sentencing judge had accepted the diagnosis in the first sentence judgment but made a finding on resentence rejecting the diagnosis without giving notice to the applicant’s legal representatives so that they had an opportunity to persuade her Honour that the diagnosis should be accepted. That, however, is not what occurred.

Even if the diagnosis of the applicant having the unspecified paraphilic disorder was not challenged by the Crown, it was open to her Honour to reject that diagnosis if she identified in the course of the sentence proceedings her reservations about the diagnosis thereby alerting the parties to the possibility that she may reject it.

In Goodridge v R [2014] NSWCCA 37, this Court was dealing with an appeal from a judge alone special hearing. The judge had expressed “slight reservations” about the opinions of psychiatrists which were in evidence. Those opinions were relevant to whether the defence had made out the partial defence under s 23A of the Crimes Act 1900 (NSW) as to substantial impairment by abnormality of mind. The judge did not accept those opinions. It was asserted on appeal, relevantly, that there had been a denial of procedural fairness and a miscarriage of justice because her Honour did not advise the parties that she intended to reject the unanimous expert evidence and did not invite the parties to provide further material or call the experts to give further evidence. After considering the exchanges between her Honour and the parties where her Honour had exposed her reservations about the evidence Hoeben CJ at CL (Simpson and Johnson JJ agreeing) said at [136]-[138]:

In my opinion, the position is analogous here. The applicant’s legal representatives were aware of her Honour’s views on the diagnosis from the first sentence judgment. Her Honour made plain during the directions hearing and in the sentence hearing prior to the imposition of the resentence that, absent further material or submissions, she was likely to make the same findings. This is what she did. There was no denial of procedural fairness.

In so far as the applicant seeks to rely on the new reports of Dr Furst, dated 2 May 2025 and Dr Pusey, dated 24 January 2025 with respect to this ground, I would not allow him to do so. Those two reports have been prepared for separate sentencing proceedings shortly coming before the District Court of New South Wales for similar offending. They bear no relevance in my opinion to the question of whether or not the applicant was denied procedural fairness in the resentencing proceedings the subject of this appeal. The fact that Dr Furst’s report confirms the opinions of the authors that the applicant meets the criteria for unspecified paraphilic disorder is beside the point. Dr Pusey’s report is at best ambiguous in this regard (as further described at [117] below) and does not assist the applicant on this ground.

In the circumstances, I do not consider the applicant has established this ground. Whilst I would grant leave to argue it, it has not been made out.

This ground relates to a statement by the sentencing judge that certain matters, including the impact of COVID-19 related restrictions in the prison system, were taken into account in the first sentence judgment. The applicant contends, correctly, that the impact of any COVID-19 related restrictions was not referenced in the first sentence judgment. Indeed, that could not have been done since the impact of COVID-19 was unknown at that time. The applicant contends, citing Kentwell v R (No. 2) [2015] NSWCCA 96 that once error has been established this court must exercise its sentencing discretion afresh.

In oral submissions, the applicant contended that the sentencing judge said she had taken into account COVID-19 restrictions in the first sentencing judgment when that was factually incorrect. At the time of the second sentence, however, it was correct to say that COVID-19 had an impact on the onerous nature of custody and there should accordingly be a reduction in the sentence.

The Crown accepts that the first sentence judgment did not refer to COVID-19 by reason of the fact that, at that time, the pandemic had not been commenced.

The Crown submitted that the question to be considered is whether the reference to COVID-19 was a slip or inadvertent misstatement about a matter which did not affect the sentence imposed or whether the sentencing judge mistook the facts and the error was material: House v The King (1936) 55 CLR 499; [1936] HCA 40 at [505]. The Crown submitted the comment made by the sentencing judge with respect to COVID-19 having been taken into account in the first sentence was nothing more than a slip.

The Crown submitted that the reference to COVID-19 was made in the context of the sentencing judge explaining the reasons for her finding in the first sentence judgment that the applicant would endure more onerous conditions in custody. The sentencing judge indicated she intended to give the same benefit of that finding to the applicant on resentence.

The Crown submitted the slip is explicable as the issue of the impact of COVID-19 on the courses or programmes available to the applicant in custody was raised in submission on resentence. No submissions were made by counsel for the applicant, either orally or in writing, that restrictions in place because of COVID-19 would make the applicant’s time in custody more onerous.

I do not consider that there is any merit in this ground. It was plainly a slip by the sentencing judge in referring in the ROS to COVID-19 in the context of the positive finding she made in the first sentence judgment as to an allowance for the onerous nature of custody on the applicant. The applicant had the benefit of that positive finding which was maintained by the sentencing judge in the resentence. She found there were no additional matters raised in the evidence which would amount to a change in circumstances to make further findings to require an alteration to the non-parole period to be served.

As the Crown observed, the issue of the impact of COVID-19 and restrictions that may have been in place because of it making custody more onerous on the applicant was not raised by the applicant’s counsel on resentence. At the resentence hearing, the applicant’s counsel did not ask to be heard on the indicative sentences, the structure of the sentences or the aggregate sentences imposed. She asked for an adjustment to the non-parole period to allow for the better facilitation of treatment as recommended by Dr Pusey to aid his rehabilitation.

Matters said to be relevant to the mitigation of sentence are expected to be raised by an offender’s legal representative at the sentencing hearing. This Court is a court of error and is reviewing the exercise of the discretionary judgment of the sentencing judge. It is not rehearing any plea in mitigation of the sentence. Appellants cannot revise and reformulate the case presented. In any event, having had the benefit of a positive finding of the onerous nature of the conditions of custody, I do not consider that the applicant has established that if it had been taken into account, it would have reduced the sentence imposed such as to render a serious injustice to the applicant or cause a miscarriage of justice. In the context of what occurred, the impact of COVID-19 on conditions of custody warranting an additional adjustment to the non-parole period, if thought to be relevant to this case, was obvious. The absence of it being raised by counsel for the applicant allows an inference that it was not thought to have had any merit in terms of reducing the sentence imposed (see Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[83]).

I would grant leave to argue this ground, but reject it.

By this ground, the applicant wishes to rely on two new reports, one from Dr Pusey dated 24 January 2025 and the other from Dr Furst dated 2 May 2025. These reports were prepared for use in sentence proceedings pending in the District Court. There the applicant is to be sentenced for one count of sexual intercourse without consent and one count of stalk/intimidate with intent to cause physical or mental harm. The offending occurred in 2008, within the timeframe of some of the offending the subject of this appeal.

The applicant’s written submissions state that the applicant seeks to rely on these reports in this appeal to rebut the sentencing judge’s rejection of the diagnosis of unspecified paraphilic disorder. He submits if the sentencing judge’s rejection of that diagnosis is allowed to stand, he will not have access to treatment thus negatively impacting his rehabilitation.

Additionally, he submits that if the sentencing judge’s findings as to that diagnosis remains, it will have ramifications on his impending District Court sentence. He submits that the District Court judge “logically has to accept the precident [sic] set by Judge Tupman” (AWS p 4). He contends that by reason of the sentencing judge’s findings rejecting the diagnosis, the District Court sentencing judge would not be able to accept the opinions of Dr Pusey or Dr Furst in the new reports.

The Crown referred to the principles that an applicant for leave to appeal a sentence is generally bound by the evidence and the case which was advanced at the sentencing hearing and may not seek to enhance the case on appeal: Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 (“Khoury”) at [104] (Simpson J, Davies J and Grove AJ agreeing); Tran v R [2014] NSWCCA 32 at [11]; R v Birks (1990) 19 NSWLR 677 at 683; R v Fordham (1997) 98 A Crim R 359 at [377]; Col v R [2022] NSWCCA 279 at [30]; Barnes v R [2022] NSWCCA 140; 299 A Crim R 483 at [24]; GAR v R [2021] NSWCCA 265 at [45]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]. Except, however, the rule is not absolute, and an appellate court has the flexibility to receive new evidence where that is necessary to avoid a miscarriage of justice.

The Crown submits that the two reports are new (rather than fresh) evidence. That is, that evidence would have been available to the applicant and his legal representatives at the time of the sentence. It notes that the earlier reports of Dr Pusey and Dr Furst (which have been referred to above) were attended in the sentence proceedings. A further opinion from Dr Furst, which was obtained in 2019, could have been obtained with reasonable diligence prior to the resentence hearing in 2021.

In any event, the Crown submits that the new reports sought to be relied upon do not establish any miscarriage of justice. The Crown submits that neither report offers any new conclusion on the circumstances advanced in the first sentence proceedings or the resentence. The Crown submits that neither of the reports could have had a bearing on the exercise of the sentencing discretion in any material or significant way. The reports do not change the applicant’s case in respect of the diagnosis of unspecified paraphilic disorder.

The Crown submits that the applicant’s contention that the rejection of the diagnosis of an unspecified paraphilic disorder somehow binds the District Court sentencing judge when that judge comes to sentence the applicant for the additional offences, should be rejected. That is because the District Court judge would not be bound to accept a factual finding made by the sentencing judge in these proceedings.

In Lawavou v R [2025] NSWCCA 35, Yehia J (with whom Garling and Cavanagh JJ agreed), from [110]-[116] reviewed the principles dealing with the receipt of new or fresh evidence on an appeal to this Court. Relevantly, those principles include:

I agree with the Crown submission that, in so far as it is necessary to decide, the evidence now sought to be adduced is the opinions of Dr Furst and Dr Pusey contained in their new reports, as to the offender having an unspecified paraphilic disorder is new evidence in the sense described above. The opinions of those doctors as to that diagnosis, was known at the time of the resentence.

The first report of Dr Furst was dated 30 January 2019. It was used in the first sentence hearing. It contained the diagnosis of unspecified paraphilic disorder. It was used again in the resentence proceedings which were almost 2 years after the first sentence judgment. If thought necessary, a further report from Dr Furst could have been sought and tendered in the resentence proceedings. It was not. Nor was a new report commissioned for this appeal. The new report is for different proceedings concerning different offending, albeit of a similar nature committed in the same time period as the offending the subject the resentence. The opinion proffered by Dr Furst in the new report repeats and reinforces his diagnosis of the unspecified paraphilic disorder. It adds nothing new.

Dr Pusey’s report dated 1 August 2021 was tendered in the resentence proceedings. The new report was not commissioned for this appeal, but for the District Court proceedings. In any event, in the new report Dr Pusey does not make a diagnosis of unspecified paraphilic disorder. He says, at [74] under the heading “Diagnosis”:

It cannot be said that either of the new reports casts any new light or offers any new conclusions on the circumstances giving rise to the offending to that advanced in the first sentence proceedings or on resentence. It cannot be concluded, therefore, that the absence of this material resulted in a miscarriage of justice because the reports would have had a real bearing on the exercise of the sentencing discretion. Nothing in those reports further advances the applicant’s case with respect to the diagnosis of unspecified paraphilic disorder, its contribution to the offending and impact on the sentencing discretion. Indeed, it could be said that Dr Pusey’s new report does not assist the applicant with respect to the diagnosis.

I do not accept the applicant’s submissions that it is necessary to receive the new reports so that the sentencing judge’s rejection of the diagnosis of unspecified paraphilic disorder is overturned. I have dealt with this issue in more detail when dealing with ground one above.

Additionally, I do not accept that the District Court sentencing judge will be bound by the findings of the sentencing judge in these proceedings with respect to the reports of Dr Pusey and Dr Furst. Her Honour’s findings with respect to the applicability of the diagnosis to the facts as she found them is a finding of fact that does not bind the District Court judge. Even if it is correct that her Honour rejected the diagnosis rather than held it did not apply to the facts of the offending as she found them, the same result would maintain.

I would grant leave to the applicant to argue this ground, but it is not made out.

For the above reasons the orders that I would propose are: