Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Rafferty v R [2024] NSWCCA 189 Hearing dates: 23 August 2024 Date of orders: 23 August 2024 Decision date: 16 October 2024 Before: Davies J at [1]; Wright J at [2]; Rigg J at [3] Decision: (1) Grant leave to appeal; (2) Allow the appeal; (3) Quash the sentence imposed by the District Court on 29 February 2024; (4) Resentence the appellant to a sentence of imprisonment of two years and three months commencing 14 February 2023 and expiring 13 May 2025 with a non-parole period of 18 months expiring 13 August 2024. Catchwords: CRIME – appeals – appeal against sentence – where expert evidence was not put before sentencing judge – whether there was a miscarriage of justice – whether evidence capable of materially affecting the outcome of the sentence proceedings – appeal allowed – resentence Legislation Cited: Crimes Act 1900 (NSW), ss 94, 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66(3) Criminal Appeal Act 1912 (NSW), s 5(1)(c) Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Bugmy v The Queen (2013) 349 CLR 571; [2013] HCA 37 John Wane Tsiakas v R [2015] NSWCCA 187 Category: Principal judgment Parties: Hayden O'Rafferty (Applicant) Rex (Respondent) Representation: Counsel: A Chhabra / M Wallis (Applicant) J Styles (Respondent) Solicitors: Legal Aid New South Wales (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2023/00010665 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 29 February 2024 Before: Lerve DCJ File Number(s): 2023/00010665 JUDGMENT 1. DAVIES J: I joined in the making of the orders for the reasons provided by Rigg J. 2. WRIGHT J: My reasons for joining in the orders made on 23 August 2024 were, in substance, the same as those of Rigg J, which I have had the benefit of reading in draft form. 3. RIGG J: At the end of the hearing on 23 August 2024, the Court made the following orders: 1. Grant leave to appeal; 2. Allow the appeal; 3. Quash the sentence imposed by the District Court on 29 February 2024; 4. Resentence the appellant to a sentence of imprisonment of two years and three months commencing 14 February 2023 and expiring 13 May 2025 with a non-parole period of 18 months expiring 13 August 2024. 1. Mr Hayden O'Rafferty was thus entitled to be released immediately to parole. As leave was granted on that date, he will be referred to as the appellant. My reasons for joining in making those orders were as follows. 2. On 29 February 2024 the appellant was sentenced by his Honour Lerve DCJ ("the sentencing judge"), in the District Court of New South Wales at Wagga Wagga, for the following two offences: 1. On 27 December 2022, breaking and entering the dwelling house of Ms Brooke, in Junee, and committing a serious indictable offence, namely larceny, in circumstances of aggravation (that he was in the company of Joseph Field) contrary to s 112(2) of the Crimes Act 1900 (NSW); and 2. On the same date at Junee, robbing Ms Brooke of an iPhone and a handbag with its contents (including $1,000, a number of identification and bank cards, and three small gemstones) contrary to s 94 of the Crimes Act 1900 (NSW). 1. The maximum penalty for the first offence is imprisonment for 20 years. The standard non-parole period applicable is imprisonment for 5 years. The maximum penalty for the second offence is imprisonment for 14 years, with no standard non-parole period applicable. 2. The sentencing judge imposed an aggregate sentence of 2 years and 9 months (or 33 months) imprisonment, with a non-parole period of 21 months. The sentence was ordered to commence on 14 February 2023, the date on which the appellant was taken into custody. His Honour specified indicative sentences of 2 years imprisonment for each offence after a 25% discount, from 2 years 9 months, for the appellant's guilty pleas. The appellant was accordingly to be first eligible for release to parole on 13 November 2024. 3. By a notice of appeal filed on 25 July 2024 the appellant sought leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against his sentence. The ground of appeal as pressed was formulated as follows: "The sentencing proceedings and the sentence judgment were affected by a miscarriage of justice arising from the failure of the applicant's legal representatives to place before the court important evidence relevant to the applicant's subjective case of the type contained in the reports of Ms Van De Velde and Dr Lennings." The circumstances of the offending 1. The circumstances of the offending were before the sentencing judge by virtue of a statement of agreed facts. The applicant and his co-offender Joseph Field had contact with the victim at her Junee residence on 26 December 2022, and came to know that she was involved in the purchase of a car. At about 6.50pm on 27 December 2022 when she was not present, they and an unknown co-offender attended the property pursuant to a joint criminal enterprise to enter the property and steal from it. The co-offenders forced entry and searched within it, one of them deactivating power to the property. The co-offenders carried the victim's X-box gaming console out of the property with the intention of permanently depriving the victim of it, and the three left. 2. Less than two hours later the victim arrived at her residence and was confronted by the appellant on her driveway. He asked where the car was, and lunged at her, attempting to grab her handbag. He said "We know you have money" and she said she needed it to buy a car. He demanded that she give him her handbag and pulled it from her shoulder, breaking the strap and taking the bag away. Inside it was property as described above. 3. The victim discovered that entry to her residence had been forced and items scattered around within it. She reported the incidents to the police. The appellant was arrested and charged on 14 February 2023. The appellant's personal circumstances as known to the sentencing judge 1. During the sentencing hearing the Crown tendered the appellant's criminal and custodial history, and a sentencing assessment report prepared by Corrective Services NSW as well as other Corrective Services documents relating to breaches of parole. Facts of earlier criminal offences were also tendered. No additional documentary evidence was adduced on behalf of the appellant and he did not give or call any oral evidence. 2. The appellant was 23 years of age at the time of offending and had just turned 25 when sentenced. He had contact with the criminal justice system as a juvenile. The Children's Court directed his participation in alcohol addiction and anger management counselling when he was 16 (in relation to offending he engaged in at 15). 3. As a young adult the appellant was convicted of offences such as breaking and entering houses and stealing from them, being carried in stolen vehicles, stalking and intimidation, common assault, being armed with intent to commit an indictable offence, firearms offences, driving offences, resisting police, and the supply and possession of drugs. Intensive Correction Orders ("ICOs") included drug and alcohol abstention conditions. His first full-time custodial sentence was imposed in May 2022 for the firearms offences, and had a parole period longer than a quarter of the total sentence, with a finding of special circumstances because of the appellant's need for rehabilitation. This sentence was ordered to commence on 13 September 2021 when he was remanded in custody for the first time, bail refused. 4. The appellant was released from custody in connection with those firearms offences when first eligible on 12 June 2022, but was reincarcerated on 12 August 2022 because of a breach of parole (an apprehended domestic violence order was made against him, he reported for supervision on only two out of the required six occasions, he did not have a fixed address, and had re-commenced drug usage). There had been arrangements for monthly medical injections for opioid treatment, and a referral to Likemind Wagga to assist with mental health and substance abuse, but these engagements had not been kept. 5. The appellant was again released to parole on 24 November 2022. A pre-release report recorded his wish to re-engage with the local mental health service Headspace upon release to help him remain abstinent in the community. He was initially compliant, but he ceased contact with Community Corrections (and offended on 27 December 2022 as outlined above). He made some contact on 11 January 2023. The breach of parole report recorded substance use as an underlying factor in all offending. 6. The sentencing assessment report recorded support for the appellant by his family, and previous full-time employment with his father in the labouring industry for approximately two years. The report suggested that the appellant was in some kind of relationship with the victim of the offences and that they had both been using substances in the lead up to the offending. To the authors of the report he said he had been using both methamphetamines and unprescribed oxycontin on a daily basis, heavily, in the period prior to entering custody. In custody he was involved in the buprenorphine program and intended to continue with it on release. He referred also to anger and jealousy contributing to his offending. The appellant reported to the authors of the report that he had been diagnosed with a personality disorder and that he had struggled with his mental health for a period of time, with an intention to reconnect with mental health services upon his release. The sentencing judgment 1. His Honour received evidence and heard submissions on sentence for the appellant and his co-offender Joseph Field on 29 February 2024, and delivered an ex tempore sentencing judgment. Written submissions had been filed in advance for both offenders and the Crown. 2. Mr Field gave evidence before his Honour and had references and expert evidence tendered in his case, as well as a report from a residential rehabilitation facility he had attended whilst on bail. The sentencing judge did not distinguish between the two men in relation to their participation in the break and enter offence. However his Honour noted that Mr Field had a limited criminal record entitling him to some degree of leniency, whereas the appellant's criminal record did not entitle him to any leniency. The appellant was on parole and subject to Community Correction orders at the time of the commission of the offence, and Mr Field contravened the terms of then current Community Correction orders. Mr Field is slightly older than the appellant. 3. His Honour distinguished further between the subjective cases of the two men because Mr Field had completed and performed very well in a period of full-time residential rehabilitation. His Honour found him to have good prospects of rehabilitation. His Honour accepted his evidence of remorse. Prior drug usage had caused or contributed to the development of psychotic symptoms, and he had a diagnosis of schizoaffective disorder; although this was not suggested to be connected with the break and enter offence. He had a partner and children. 4. His Honour found the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") met in Mr Field's case, but determined that an ICO should be imposed. His Honour found that such an order was more likely to address Mr Field's risk of reoffending than full time custody. He had spent 118 days in custody and approximately 8 months in quasi-custody in the residential rehabilitation centre and this was taken into account, in the consideration of s 66(3) of the Sentencing Act, as to whether to impose an ICO (rather than the length of the term of imprisonment). An 18-month ICO was imposed. 5. In sentencing the appellant his Honour recorded the appellant's family support and intention to engage in full-time employment with his father, as recorded in the sentencing assessment report. He took into account the circumstances of the appellant's adult offending, disentitling him to leniency, and the commission of the offences whilst on parole. Regarding the appellant's discussion with the authors of the sentencing assessment report of the reasons for offending, his Honour did not find remorse, but stated that "..nevertheless it is significant that it would seem that in his mid-twenties the offender now has some insight into his behaviour." His Honour stated: "He has been diagnosed with a personality disorder, and the offender told the author of the report that he struggled with mental health for a period of time. In the absence of a report or any expert opinion, that statement merely is part of the subjective mix and certainly I could not find any causal connection between any mental health condition and the offending." 1. The sentencing judge recited the purposes of sentencing in s 3A of the Sentencing Act immediately prior to imposing sentence on Mr Field, and then going on to consider the appellant's case. After analysing the appellant's case his Honour noted that he had already placed the terms of s 3A on the record. His Honour then indicated the difficulty in the appellant's matter in the absence of subjective material. Before imposing sentence his Honour stated: "The offender, O'Rafferty is, it seems to me, at what might be described almost as a crossroads. He either wakes up to himself now, embraces a finding of special circumstances that I am prepared to make (and I indicate on one view of it, the finding is quite generous and may not be justified) but nevertheless, it seems to me there is a very real need for intensive and extensive supervision, so far as O'Rafferty is concerned. In particular, for him to do something about his substance abuse issues. If the offender, O'Rafferty, does not do something in the very near future, and if he does not engage properly upon his release this time, it seems to me that his life may well be wasted with a considerable period of actual custody." 1. His Honour was prepared to allow complete concurrency between the sentence and the appellant's revoked parole. Evidence adduced on appeal 1. A report dated 13 May 2022 of Ms Sarah Van De Velde, forensic psychologist, was prepared for the purposes of the appellant's court appearance in the Local Court in 2022 for the firearms offences. This was not before the sentencing judge, but came to the attention of the appellant's legal representatives on this appeal. The contents of this report caused those representatives to seek further expert assistance, and Dr Christopher Lennings, clinical psychologist, prepared a report dated 11 July 2024, having interviewed the appellant the day before. 2. These reports are detailed, and have much in common. They were each based on detailed interview with the appellant as well as supporting information such as interviews with the appellant's father, the administration of clinical tests, and access to records of hospitals and mental health and rehabilitation services. 3. The reports record a significantly disrupted and dysfunctional childhood and developmental path. The appellant's parents separated when he was five years of age and although he had a functional home available with his father, he spent considerable periods of time with his mother. In her care he was exposed to her significant drug usage, acts of aggression, and dependency on partners. She confided inappropriately in the appellant as a child regarding her drug and relationship problems, and he felt significant pressure regarding care for her and his half siblings. On one occasion she abducted him from NSW and enrolled him in school in Queensland, although this ended after a few months when the Australian Federal Police took him back to his father. 4. The appellant was the victim of sexual abuse at the hands of an older cousin and a teacher from about 9 years of age and experienced fear, guilt, shame, and confusion. He began abusing substances at 14, described by Dr Lennings as an iatrogenic addiction to dampen the psychological aspects of the trauma, having developed a severe dissociative reaction with a post-traumatic stress disorder following the sexual abuse. 5. When in his father's care the appellant was at times aggressive towards him. He moved at 14 to live with his grandparents. He was particularly close to his grandmother. She died when he was 15 and he consumed Endone which she had obtained under prescription (having already had a measure of addiction to this substance following a leg injury of his own when 14). 6. The appellant had a history of engagement with mental health and drug rehabilitation services from a young age. Dr Glasson from Headspace, Wagga Wagga, confirmed contact with that agency sporadically between 2016 and 2021, with a background of trauma indicated as well as personality disorders. He had contact with Temora Mental Health unit from age 14 until his remand in 2021. A residential rehabilitation program was completed in the ACT at age 16, supporting a level of control over drug usage in the community for the following two years. 7. Wagga Wagga Base hospital records from 2021 indicate diagnoses of anxiety, depression and antisocial personality disorder. The appellant was hospitalised following an overdose in 2021 (following an argument with his father). He was prescribed antidepressants, Seroquel (quetiapine), benzodiazepines and medication for opioid addiction from the age of 16. The appellant's father confirmed a number of further attempts by the appellant to end his own life, including an attempted hanging. The appellant reported self-harm by cutting from 10 to 14 years of age. 8. The appellant left school in year 10 after a number of years of inability to focus. His romantic relationships were dysfunctional and involved drug usage. He worked for extended periods in the community without incident. 9. The appellant was hospitalised while on remand in October 2021 due to physical consequences associated with his post-traumatic stress disorder. This was his first experience of incarceration and he had ongoing severe anxiety around men following the sexual abuse. He was locked in a cell with another inmate and a serious medical problem arose. At the time of Dr Lennings' assessment on 10 July 2024, during the appellant's most recent incarceration, he had remained drug free for a number of months after an initial medical treatment for drug replacement maintenance, and transfer to a farm gaol. 10. Ms Van De Velde diagnosed complex post-traumatic stress disorder and substance use disorders (the latter in remission at the time of her assessment). She set out in detail the symptoms as experienced by the appellant, and the connection with the firearms offences for which he was then to be sentenced (essentially, his heightened feelings that he needed to protect himself). His significant childhood trauma had contributed to an enduring pattern of emotional dysregulation, impulsive behaviour, impaired problem solving, an unstable and negative self-identity, anger, guilt, numbness, hypervigilance, unhelpful coping strategies and impaired relationships. His difficulties had been exacerbated by being the victim of a home invasion and a drug related kidnapping in the months prior to the firearms offences. 11. Dr Lennings noted the historical consideration given to personality disorder, but was of the view that as the appellant suffered from and continued to experience the impact of trauma, and much of his behaviour had been controlled by drug use and he demonstrated a generally calm, rule abiding and settled manner in gaol when not using such substances, any diagnosis of personality disorder should only occur after a period of sobriety in the community. He was of the view that the appellant met the diagnostic criteria for post-traumatic stress disorder and severe opioid dependence, benzodiazepine dependence and stimulant dependence, in partial remission. He was also of the view that there were likely Cluster C (personality) traits made up of dependence, obsessional behaviours and anxiety. 12. He described the appellant as having matured more slowly than would have been the case without the difficulties in his life that had truncated development. He was of the view that the appellant's anxiety was superimposed upon a personality that at its core is fundamentally affected by the unresolved trauma of his childhood and early adult years. 13. To Dr Lennings the appellant provided a history of a relationship with the victim of the offending as partly romantic and partly as the supplier to him of drugs. Anger and jealousy were involved in the offending as well as a drive for drug acquisition. Dr Lennings expressed the view that the diagnoses made by him were operative and contributory to the offences, and continued to impact his life as at the time of reporting. 14. Dr Lennings regarded the appellant as having reasonable rehabilitation prospects. He referred to his insight, his family support, and core experiences of positive relationships with his father and grandmother that provide a basis for managing and developing a pro-social lifestyle. 15. The parties also placed before the Court evidence regarding the lack of knowledge of the relevant aspects of these reports, or the issues raised in them, on the part of the appellant's legal representatives at first instance. None of this material was contentious. It reveals that counsel briefed raised with his instructing solicitor, from the time he was first asked to appear for the appellant, the issue of whether any expert reports were required. His instructing solicitor, who had a long history of acting for the appellant, assured him that no such material would be of assistance. 16. The solicitor, for his part, had not acted for the appellant in connection with the firearms offences and was unaware of Ms Van De Velde's report. He was unaware of the aspects of the appellant's circumstances contained within it. So far as can be gleaned from his communications with counsel, it seems he expected that the appellant should be soon released from custody by proceeding without delay in February 2024, and that there was nothing more favourable for the appellant that could be discovered than contained within the sentencing assessment report. Ground of appeal The parties' submissions 1. The ground was argued by both parties on the basis that the Court may receive and act upon the evidence of Ms Van De Velde and Dr Lennings if it formed the view that the evidence demonstrated a miscarriage of justice in the proceedings: Betts v The Queen [2016] HCA 25; 258 CLR 420 at [2], [10], John Wane Tsiakas v R [2015] NSWCCA 187 ('Tsiakas') at [43] (Beech-Jones J, as his Honour then was, Davies J and Grove AJ agreeing). It was accepted that it was for the appellant to establish that the evidence is of real significance and capable of materially affecting the outcome of the sentence hearing: Tsiakas at [44], [67], affirmed on numerous occasions. The mere fact that more fulsome material could have been produced for the sentencing hearing was not sufficient to give rise to a miscarriage of justice. 2. A deliberate choice to not adduce relevant evidence at first instance may be relevant to the discretion to admit the evidence. It was argued on the appellant's behalf and not contested by the respondent that there was no reasoned forensic decision to not adduce the evidence of Ms Van De Velde or make further enquiries regarding the issues discussed in her report. 3. It was contended for the appellant that the evidence was of real significance and capable of materially affecting the outcome of the sentencing hearing because it canvassed profound mental health issues and a background raising issues of the kind considered in Bugmy v The Queen (2013) 349 CLR 571; [2013] HCA 37; and could have founded submissions regarding reduced moral culpability and reduced suitability of the appellant as a vehicle for general deterrence. It was submitted that the material could have informed the sentencing judge's consideration of parity in relation to the offence in common with Mr Field. It was submitted that the pithy reference in the sentencing assessment report to the appellant's report of a prior diagnosis of personality disorder, and of having struggled with his mental health, did not convey the severity of his complex issues and background. Such limited note explains the sentencing judge's restriction to stating that, in the absence of any expert evidence, the comment by the appellant as recorded in that report could only be noted as "merely part of the subjective mix". 4. The respondent pointed to the fact that the sentencing judge did refer to the appellant's self-report of a prior diagnosis of personality disorder as "part of the subjective mix", and that his Honour was aware of the appellant's pro-social support from his father and capacity to work with him. 5. It was submitted that although offending in the context of drug addiction where that addiction has existed from a very young age, caused by childhood adversity, could be taken on occasion to reduce moral culpability, the appellant had been able to control his drug usage for a period from 16 years of age. It was submitted that Dr Lennings' report was not clear enough as to which of the two diagnoses contributed to the offending, and how it or they did so. The respondent contended that these offences were a low-level bag snatch and break and enter offence, without particular emphasis on general deterrence in the sentencing judgment. It was submitted that the appellant's mental health issues did not make custody more onerous for him; instead the structure of custody had enhanced his rehabilitation. 6. The respondent's ultimate submission was that although the expert reports provided better or more fulsome evidence, they did not display sufficient significance in the context of this sentencing exercise to indicate that a miscarriage of justice was caused by the sentencing judge not having access to the material contained within them. Determination 1. Although generally parties are bound by the manner in which cases are presented at first instance, additional evidence not presented at sentence may be admitted on appeal if it demonstrates a miscarriage of justice in the proceedings. I am of the view that the expert material presented by the appellant should be received by this Court. It was capable of materially affecting the outcome of the sentence proceedings. 2. The appellant's offending occurred in the context of severe drug addiction and interpersonal anger and dysfunction in his relationship with the victim, both problems associated with diagnosed psychiatric conditions. His development was truncated and marred by childhood trauma. He is left with significant psychiatric and psychological symptoms as a result. His background and mental health issues are capable of reducing his moral culpability in this offending, and of reducing his suitability as a vehicle for general deterrence. General deterrence was one of the justifications for this sentence being imposed. Its role was not moderated in any way. The material presented to this Court was capable of having a meaningful impact on the sentencing judge's attribution of a role to general deterrence, in a way favourable to the appellant. 3. The appellant's background and resultant post-traumatic stress disorder have caused relevant hardship for him in custody. His hospitalisation at 22 years of age when locked in a cell with another man on his first period of remand in custody was directly linked with these issues. 4. The material is also highly relevant to assessment of the appellant's prospects of rehabilitation, and the way in which the appellant's rehabilitation as a purpose of sentencing him is best addressed. Parity would have been more accurately assessed with an understanding of the appellant's background and difficulties. The material could have justified consideration of a sentence for one or both of the appellant's offences being served by way of an ICO. 5. In these circumstances, the failure by the applicant's legal representatives to obtain and place before the sentencing judge evidence such as that contained in the reports of Ms Van De Velde and Dr Lennings meant that the sentence proceedings involved a miscarriage of justice which materially affected the outcome. 6. For these reasons, the sentence was required to be set aside and the applicant re-sentenced. Re-sentence 1. An affidavit sworn by the appellant was received for the purposes of re-sentence. He gained a minimum classification on 4 March 2024. He has received no internal disciplinary charges since his arrest. He was assaulted by three inmates on 26 March 2024 and has been required to spend some time in protective custody in more restrictive conditions as a result. This was particularly onerous in light of his mental health conditions, and he felt a great deal of anxiety. 2. The appellant has been working and studying in custody. He confirmed his withdrawal from the drug replacement maintenance medication, and his commitment to ongoing drug abstinence and rehabilitation. This material supports Dr Lennings' opinion of reasonable prospects of rehabilitation and confirms the sentencing judge's finding of special circumstances. Although such finding was noted by his Honour to perhaps be overly generous on the material then available, the appellant's need for significant assistance in his reintegration into the community is now very clear. 3. Taking into account the circumstances of each offence, and the totality of material regarding the appellant's personal circumstances, I was of the view that a sentence of 18 months imprisonment was indicated for each offence, after a 25% discount for the guilty plea. I note that this is the same length as the period of imprisonment imposed upon Mr Field for the offence in common, although it was to be served by way of an ICO in his case. Consideration of an ICO was no longer a suitable option for the appellant given the length of time he has spent in custody. 4. Having regard to the totality of the appellant's offending, I was of the view that a sentence of 2 years 3 months imprisonment with a non-parole period of 18 months should be imposed. Orders: 1. Accordingly, the orders set out above were made on 23 August 2024. ********** Amendments 17 October 2024 - Typographical amendment to the Applicant's representation on the Cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 October 2024