Lloyd v R [2022] NSWCCA 18
Lloyd v R [2022] NSWCCA 18 · Read the judgment on AustLII
Catchwords: Sentencing – expert reports without giving evidence – Qutami – lawyerly arrogance
Most criminal law practitioners will be familiar with the authorities urging sentencing courts to exercise caution before giving any weight to untested statements made by offenders to experts. Here, the Court of Criminal Appeal (‘CCA’) has observed that there is no ‘principle’ that such statements are automatically deserving of less weight, and the expert opinions which rely on those statements should not lightly be swept aside (at least, not in the absence of requiring the expert for cross-examination).
The applicant was sentenced for entering a dwelling house with intent to commit a serious indictable offence (assault occasioning actual bodily harm), in circumstances of special aggravation (wounding with intent), along with some offences taken into account on a Form 1. He entered the victim’s home brandishing a box-cutter, in the presence of four or five other men; he apparently believed the victim to be a sex predator. In the event, the applicant was sentenced 8 years, with non-parole period of 5 years.
The evidence on which the applicant was sentenced included a psychological report. The report was tendered without the applicant giving evidence. That report was relied upon, in part, to invoke the principles in Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’). Bugmy provides, very broadly, that a disadvantaged upbringing must be given full weight each time the offender is sentenced, and an offender’s moral culpability may be reduced by reason of that dysfunctional childhood. In the applicant’s case, the report disclosed that his upbringing included being surrounded by alcohol abuse, violence, sexual abuse, and abandonment by his mother in his early teens (amongst other things). The applicant specifically relied upon the report to identify a causal connection between the applicant’s upbringing and his offending.
McCallum JA (with whom Hamill and Cavanagh JJ agreed) found that (for reasons not presently important) despite reciting the principles involved, the sentencing judge failed to give sufficient weight to the applicant’s deprived upbringing (at [35]-[41]).
Of more immediate interest is the fact that the judge had commented adversely on the self-report by the applicant in the psychological assessment, echoing a concern in the decision of Qutami v R [2001] NSWCCA 353 (‘Qutami’). In that Qutami, which will be well known to both prosecution and defence practitioners, Smart AJ made the ‘general observation’ that ‘very considerable caution should be exercised’ before relying on untested statements made by an offender to experts, and that in many cases only very limited weight, if any, can be given to the statements (at [58]-[59] of Qutami; [43] of the present decision). Here, the Court observed that the general observation from Qutami is sometimes mistaken for a principle, when it is not. If it were a principle it would be wrong, and would require correction. Leaving aside that the Evidence Act does not apply to sentence proceedings unless a party applies, the weight to be given to particular kinds of evidence cannot be pre-empted as a matter of principle. The weight to be given the evidence is always a matter for the individual assessment of the sentencing judge (at [45]).
The current practice of the District Court requires the defence to serve their expert reports in advance of sentence. The clear purpose of that practice is to allow the Crown an opportunity to consider whether to accept or challenge the contents of the report. Where the report is not challenged, the correct approach is to be found in Devaney v R [2012] NSWCCA 285 at [88], to the effect, essentially, that it is inappropriate to lessen the impact of a professional opinion of an expert, without cross-examination, when that opinion is based on history. Part of the skill of the expert is assessing the history, and to say that the offender was manipulating the expert is to criticise the professional opinion of the expert, and should be put to them (at [46]). To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is lawyerly arrogance (at [47]).