Rae v R

1. [1]

   MACFARLAN JA: I agree with Harrison J.

2. [2]

   HARRISON J: Benjamin Thomas Rae pleaded guilty on 11 April 2018 in the Newcastle Local Court to one count of being an accessory after the fact to an aggravated break, enter and steal offence pursuant to s 112(2) of the Crimes Act 1900. On 17 August 2018, Mr Rae was re-arraigned before Ellis DCJ in the District Court at Newcastle on an indictment and maintained his plea. He was then sentenced to a term of 4 years and 6 months imprisonment with a non-parole period of 3 years commencing on 4 July 2018 and expiring on 3 July 2021. The maximum penalty for this offence is 20 years imprisonment with a standard non-parole period of 5 years.

3. [3]

   At the date of his sentence, Mr Rae was serving a pre-existing aggregate term of imprisonment imposed in the Newcastle Local Court on 3 November 2017 for a variety of offences including goods in custody, shoplifting, common assault, armed with intent to commit an indictable offence and drive whilst disqualified. The Local Court sentence was an aggregate head sentence of 2 years commencing on 1 September 2017 and expiring on 31 August 2019, with an aggregate non-parole period of 1 year and 2 months commencing on 1 September 2017 and expiring on 31 October 2018. When sentenced, Mr Rae had spent the period from 19 July 2017 until 1 September 2017 in pre-sentence custody solely referable to the present offence.

Factual background

1. [4]

   On 5 December 2016, between about 9.46pm and 10.12pm, a total of 39 firearms were stolen from the firearm storage section of a Kennard’s storage facility in Newcastle West. The Crown case was that Michael Rae, one of Mr Rae’s brothers, attended the storage facility at about 2.30pm that day in the company of a woman. Michael Rae told an employee of Kennard’s that he needed somewhere to store his things and asked if he could store a firearm at the facility. The employee told Michael Rae that there were special firearms lockers and that there was one available that he could inspect. Michael Rae asked if he could measure the locker to ensure it would fit all his firearms. He was taken downstairs to the firearm storage section, where he observed the PIN used to gain access to that area via a keypad.

2. [5]

   Mr Rae attended the storage facility at 5.40pm that same day. CCTV images show Mr Rae approaching the front counter wearing a pair of sunglasses, conversing with an employee and writing on a form. The Agreed Facts note that Mr Rae approached an employee at the front counter and asked if he could lease “the smallest cheapest locker”. Mr Rae said that “he needed to rent it that day”. Mr Rae completed a storage lease agreement in the false name of Daniel McRae and provided a driver licence to the employee in that name. He paid for the locker in cash. The employee offered to show Mr Rae the location of the locker, but he declined, saying he had a “sore foot”. Mr Rae added that his brother may come to use the storage locker that night. The employee gave Mr Rae a unique six digit PIN allowing him 24-hour access to the facility. Mr Rae left the office.

3. [6]

   The firearms were stolen later that night. At 9.46pm, the PIN given to Mr Rae was used to access the loading dock at the Kennard’s storage facility. A vehicle containing three people was seen on CCTV entering the dock. Two people with their head and face covered emerged from the vehicle, whilst the third person remained in the vehicle and drove it back and forth within the loading dock. Two minutes later, the PIN obtained by Michael Rae was used to gain access to the firearms storage area. By about 10.12pm, the firearms had been loaded into the vehicle and driven away.

4. [7]

   Police were notified and found cut padlocks to 20 storage safes on the floor of the firearms storage area. Each storage safe was empty. As a result of an audit of the owners of the storage safes, it was determined that 39 firearms had been stolen. In the proceedings on sentence, the solicitor for the Crown advised the Court that it was his understanding that approximately 25 of the firearms were subsequently recovered by police.

Subjective circumstances

1. [8]

   Mr Rae did not give evidence or tender any documents. His criminal record and custodial history were part of the Crown sentencing bundle. There was no pre-sentence report or sentencing assessment report.

2. [9]

   In his oral submissions on sentence, Mr Rae’s counsel stated that whilst Mr Rae had a good upbringing, and was not exposed to family violence, drugs or alcohol, both of his parents suffered from mental illness. In particular, Mr Rae’s counsel informed the Court that Mr Rae’s father suffered from chronic depression and bipolar disorder and that he had committed suicide when Mr Rae was 17 years old. Mr Rae’s counsel further informed the Court that when Mr Rae was 24, his mother was diagnosed with cancer and that Mr Rae’s mother committed suicide when he was aged 25.

3. [10]

   Mr Rae’s counsel stated that, following his father’s death, Mr Rae immediately commenced using cannabis which was a “bad cannabis problem for many years when he was smoking at least a quarter of an ounce a day”. Mr Rae later used ecstasy and after his mother’s death [he] used ice and “developed a very severe ice problem, taking up to half a gram to 1 gram per day”.

4. [11]

   In respect of Mr Rae’s mental health, his counsel indicated that Mr Rae had instructed him that he was diagnosed with borderline personality disorder and chronic depression and anxiety in 2016 when at the Dooralong Centre. He stated that Mr Rae “self-medicates” and had resisted taking Seroquel given to him by his doctor “because he says it makes him feel dopey all day and it also makes him put on weight”. Mr Rae’s counsel indicated that his “prospects of rehabilitation could be good or bad. It really is going to be entirely linked to his ability to stay abstinent from drugs, particularly ice …”. Mr Rae’s counsel also contended that special circumstances should be found due to his “powerful drug addiction” and that “[e]ven with completing an eleven month rehabilitation, he couldn’t stay abstinent…He will need help upon release with accommodation, perhaps referral to drug and alcohol services and the like”.

5. [12]

   Mr Rae’s counsel submitted that a sentence with a non-parole period in the vicinity of 2 to 4 years would be appropriate. He indicated that he did not wish to be heard against the sentencing judge’s proposed head sentence of 4 years and 6 months with a non-parole period of 3 years.

6. [13]

   Mr Rae now seeks leave to appeal against his sentence on the single ground that a miscarriage of justice occurred because of what he maintains is the incompetence of his legal representation in the District Court. That complaint arises from the fact that Mr Rae had a history of mental illness which he says he drew to the attention of his legal representatives and yet no application was made to his Honour for an adjournment in order to explore that history or to obtain either past medical records or a then as yet unavailable psychiatric assessment and report for sentencing purposes.

7. [14]

   In order to make good that ground in this Court, Mr Rae sought to rely upon additional evidence that included, but was not limited to, a report dated 15 March 2016 from Dr Matthew Hocking, a consultant psychiatrist and a Hunter Mental Health Service Encounter Summary. The Crown did not accept that this material satisfied the test for the admission of new evidence set down in Goodwin v R (1990) 51 A Crim R 328. Mr Rae contended that this Court should in any event receive the material as evidence in this application upon the basis that it would cause him an injustice if it were not received (see Many v R (1990) 51 A Crim R 54) and that incompetent representation had left the sentencing tribunal to impose a sentence without the benefit of evidence of some fundamental fact: see R v Abbott (1985) 17 A Crim R 355.

8. [15]

   In R v Abbott, Street CJ said this at 355-356:

9. [16]

   It is this passage upon which Mr Rae principally relies in the elucidation of his complaint that there has been a miscarriage of justice as the result of the loss of an opportunity to rely upon either the existing medical material or to secure an expert report dealing with his psychiatric or psychological health for the purposes of sentencing.

10. [17]

    In order to attempt to resolve the issue of whether or not Mr Rae’s legal representatives relevantly failed to place evidence of his history of mental illness before the court or to seek an adjournment in order for such evidence to be obtained, this Court received evidence from both Mr Rae and from his former solicitor Kristy Anne Winter and his former barrister William Gregory Hussey.

11. [18]

    The authorities make it clear that evidence from trial counsel as to the reason why the impugned course was taken is ordinarily irrelevant and inadmissible on appeal. In Alkhair v R [2016] NSWCCA 4, Macfarlan JA reviewed the authorities and identified the following relevant principles at [31]:

12. [19]

    In this Court, leave was granted to the parties to call evidence as to the communications between Mr Rae and his lawyers on the discrete issue of whether an adjournment should have been sought to enable medical evidence to be adduced. Accordingly, Mr Rae and his former lawyers gave evidence in the form of affidavits that were read in this Court and all deponents were cross-examined.

13. [20]

    Mr Rae’s affidavit was dated 5 September 2019. Under the heading “Mental Health Instructions”, Mr Rae said this:

14. [21]

    When cross-examined in this Court by the Crown, Mr Rae conceded that he was told by his lawyers on the day of the sentencing proceedings that he would not be sentenced on that day if he were to get a report from a psychiatrist.

15. [22]

    Ms Winter swore an affidavit on 18 October 2019. Part of that affidavit is as follows:

16. [23]

    Mr Hussey swore his affidavit on 17 October 2019. It contained the following:

17. [24]

    In addition to this material, Mr Rae sought to refer to a considerable amount of further medical and psychiatric records collated and annexed to two affidavits of his current solicitor Frances Anne Low affirmed respectively on 29 and 31 October 2019. It is sufficient for present purposes to observe that this material appears clearly to support the fact that Mr Rae has had a considerable amount of contact as a patient with mental health professionals and facilities over some several years, as far back as 2008.

The sentence below

1. [25]

   In sentencing Mr Rae, after referring to the maximum penalty and standard non-parole period, his Honour noted the plea of guilty that attracted a 25 percent discount. His Honour briefly summarised the facts, noting that Mr Rae had been an accessory by “actually hiring [the storage facility’s] smallest facility which then granted them 24/7 access to the complex”.

2. [26]

   His Honour noted that Mr Rae had a “reasonably lengthy criminal history” and was serving the Local Court aggregate sentence. He was 33 at the time of the offence and 35 at the date of sentencing. His Honour indicated that he had taken into account the Ponfield guideline judgment. He said that “the type of item [that] was stolen represents some significant concern and the possession of which in itself, without being appropriately licensed, is a significant criminal act”. His Honour found that “the planning in this case is a little more than one normally sees in relation to offences of this type and it does constitute an aggravating factor”.

3. [27]

   After again referring to the maximum penalty and standard non-parole period as reflections of the community’s attitude to this type of offending and as guideposts to an appropriate penalty, his Honour referred to Mr Rae’s subjective features in the following terms:

4. [28]

   His Honour found special circumstances on the basis of the sentence being Mr Rae’s first lengthy period of imprisonment, the fact that the sentence was to be partly accumulated on the aggregate sentence imposed by the Local Court and the fact that Mr Rae needed a longer than normal period on parole to assist his reintegration and to deal with his substance abuse problems.

5. [29]

   His Honour indicated that the starting point for the sentence he proposed to impose would be 6 years which, following the discount, produced the sentence of 4 years and 6 months with a non-parole period of 3 years.

Consideration

1. [30]

   In my opinion, it is possible and preferable to deal with Mr Rae’s appeal to this Court without attempting to resolve the apparent conflict between him on the one hand and his former solicitor and barrister on the other hand concerning the issue of whether an adjournment of the sentencing proceedings should have been requested to enable medical evidence to be adduced.

2. [31]

   As already noted, part of the material referred to by Ms Low in her affidavits, received in this Court on a provisional basis, was a report of Dr Matthew Hocking dated 15 March 2016. That report contained the following opinions:

3. [32]

   Mr Rae conceded that this report did not achieve the heights referred to in Abbott, in that it does not provide an explanation for Mr Rae’s offending. However, he submitted that his longstanding anxiety, depression, borderline personality vulnerabilities and bipolar disorder, which led to three mental health hospital admissions in the period between 2004 and 2014, were significant to the sentencing exercise in at least two ways. First, Mr Rae’s mental illness may render him an inappropriate vehicle for general deterrence and secondly, a custodial sentence may weigh more heavily upon him: see, for example, R v Hemsley [2004] NSWCCA 228 at [34] and [35].

4. [33]

   It is apparent from his sentencing remarks that his Honour took account of Mr Rae’s loss of his parents by suicide as well as his significant illicit drug problem. However, it is unsurprising in the absence of any evidence of his mental health challenges that his Honour made no reference to this at all. It is also apparent from the evidence of Mr Rae’s former solicitor and barrister that they were aware, if only in a general sense, of his history of mental illness at the time of the sentencing proceedings. In the events that occurred, submissions were made on Mr Rae’s behalf at the sentencing proceedings that included references to his diagnosis of borderline personality disorder and chronic depression and anxiety, among other things. However, in the absence of supporting medical opinion, Mr Rae’s legal representatives were not in a position to make, and did not make, the submission now made in this Court about moderation of general deterrence or the extent to which a custodial term might weigh more heavily upon him than an offender without similar mental health issues.

5. [34]

   Mr Rae contended in these circumstances that no regard was given to his mental health in the determination of his sentence and that this has resulted in a miscarriage of justice.

6. [35]

   In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, the High Court referred to the following matters in the determination of appeals under s 6(3) of the Criminal Appeal Act 1912:

7. [36]

   Fresh evidence may be admitted without error being established where an applicant establishes that a miscarriage of justice has occurred by reason of incompetent or careless representation on sentence: R v Fordham (1997) 98 A Crim R 359 at 377-378. That is to be contrasted with the position “where a deliberate decision as to issues to be pursued is made” in which case “there is nothing unfair, and there will be no miscarriage of justice, in holding an accused to such a decision, even though it is conceivable (or might be thought by other advisers) that a different decision may have ‘worked rather better’”: R v Diab [2005] NSWCCA 64 at [19]; see also Ratten v The Queen (1974) 131 CLR 510 at 517 and R v Abou-Chabake [2004] NSWCCA 356.

8. [37]

   In the present case, the decision to proceed to sentence before his Honour without seeking an expert medical opinion cannot strictly be characterised as a forensic decision in the sense that it involved a choice, made by Mr Rae’s legal representatives on his behalf, between competing possibilities with associated but unpredictable advantages and disadvantages. It is difficult to detect the existence of any substantive disadvantage to Mr Rae that might, or could, have resulted from adjourning the sentencing proceedings for that purpose. This does not appear to me to be a case in which Mr Rae should be bound by a decision made by his legal representative if the sentencing tribunal can be shown to have been deprived, for whatever reason, of the significant advantage of having material before it that potentially informed a very significant aspect of Mr Rae’s subjective case. Nor is this a situation in which Mr Rae is seeking to abandon the case on sentence that he ran before his Honour or to alter his course and run a substantially different case in this Court. Mr Rae’s simple proposition is that, for whatever reason, he has lost the opportunity, or has been deprived of the chance, of a better outcome that was fairly open.

9. [38]

   The principle advanced by Mr Rae would appear to derive inspiration from what was said by Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 at 395 as follows:

10. [39]

    A situation not dissimilar to the present case arose for consideration by this Court in Pym v R [2014] NSWCCA 182. Fullerton J described the position there as follows:

11. [40]

    Later in her reasons, Fullerton J said this:

12. [41]

    In my opinion, by analogy with the circumstances prevailing in Pym, a miscarriage of justice has occurred. The sentencing judge did not have before him evidence that had the significant potential reliably to inform his sentencing discretion. In so saying I acknowledge that Mr Rae has not yet obtained, and this Court has not seen, any additional medical opinion upon which he hopes to rely. It is sufficient to observe that Mr Rae’s history of illness suggests that a current review of his medical condition contemporaneously available with a sentencing decision would be a matter of potential significance to a sentencing tribunal.

13. [42]

    In this last respect the Crown contends that even if his Honour had had the material explaining Mr Rae’s medical history, or possibly even an up-to-date report from an expert detailing his current psychiatric health, there can be no certainty that a different result would follow and that the sentence imposed by his Honour was in any event quite lenient in the circumstances. Moreover, as Mr Rae accepts, the medical material already available does not provide or suggest that his mental health offers an explanation for his offending. In my view, these are matters that can be raised when Mr Rae is resentenced. They are not matters that derogate from the fact that Mr Rae has been the subject of a miscarriage of justice in the way I have described.

14. [43]

    In these circumstances I would grant leave to appeal and allow the appeal. The question that necessarily then arises is what should occur next.

15. [44]

    In my opinion, the matter should be remitted to the sentencing judge for reconsideration in light of the medical records annexed to Ms Low’s affidavit or when and if Mr Rae obtains the further anticipated psychiatric or psychological assessment that he desires. In so saying, I appreciate that the question of remitter has not been without some controversy. The issue arose peripherally in Betts as the following passages reveal:

16. [45]

    Fullerton J in Pym considered that remitter was appropriate. Her Honour, with the agreement of Hoeben CJ at CL and Price J, said this:

17. [46]

    I consider that this Court should take a similar approach. That is particularly so having regard to the fact that no error has been identified in the way in which his Honour sentenced Mr Rae. His Honour should in the circumstances be given the opportunity to consider any further material that Mr Rae wishes to place before him. Correspondingly, the Crown should have the opportunity to respond to such material in such fashion as it may be advised.

Orders

1. [47]

   In the circumstances, I would propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed upon Mr Rae by Ellis DCJ on 17 August 2017.

   4. (4)

      Remit the matter to Ellis DCJ for sentence, or another judge of the District Court if his Honour is not available.

   5. (5)

      Direct that the matter be placed in the District Court arraignments list on 20 December 2019.

2. [48]

   CAVANAGH J: I agree with Harrison J