AB v Attorney General for New South Wales

Principles Applicable to a Review

1. The provisions of s 78 of the Appeal and Review Act allow a convicted person to apply for an inquiry into a conviction or sentence. Such an application is made to the Supreme Court.
2. In this case, by letter dated 7 October 2020, the Applicant applies for a review of the sentence, by reason of what are said to be misapprehensions or mistakes in the understanding of the Court of Criminal Appeal (hereinafter the "CCA") when it determined the Applicant's appeal.
3. Once an application has been made under s 78, relevantly, the Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence or the Court may refer the whole case to the CCA to deal with as an appeal. Those actions may be taken only in circumstances where it appears that there is a doubt or question, relevantly, as to any mitigating circumstances or as to any part of the evidence in the case. [1]
4. Further, the Court may refuse to consider or otherwise deal with an application under s 78. [2]
5. The Appeal and Review Act sets out the circumstances in which the Court may refuse to consider or otherwise deal with an application, but the circumstances there prescribed are not exclusive and do not limit the jurisdiction of the Court to refuse to consider or otherwise deal with an application.
6. The prescribed considerations which allow, non-exclusively, the Court to refuse to consider or otherwise deal with the application are if it appears to the Court that the matter: has been fully dealt with in proceedings giving rise to the sentence, or in proceedings on appeal from the sentence; has previously been dealt with under Pt 7 of the Appeal and Review Act; has been the subject of a right of appeal or right to apply for leave to appeal, but no such appeal has been made; or has been the subject of proceedings on appeal and the appeal has been withdrawn or the proceedings have been allowed to lapse. [3]
7. The last two matters are inapplicable to the current application. There was a right to seek leave to appeal, which was exercised and the CCA issued judgment in relation to the appeal.
8. The foregoing unusual discretion not to deal with an application for the reasons outlined above must be accompanied by the Court not being satisfied that there are special facts or special circumstances justifying the taking of further action.
9. The legislature has made express that which might, in any event, arise from the terms of the legislation, namely, that the function performed by a judge of the Court in determining an application under s 78 of the Appeal and Review Act does not involve judicial proceedings or the exercise of judicial power. [4]
10. A judge of the Court to whom the matter has been allocated, pursuant to the terms of s 75(1) of the Appeal and Review Act, is not entitled to direct an inquiry to be conducted or to refer the whole case to the CCA, unless it appears to that judge that there is a doubt or question as to, relevantly, any mitigating circumstance or to any part of the evidence in the case. In the absence of the appearance of the doubt or question, the judge of the Court has no power to refer the case or to direct an inquiry into the sentence.
11. These matters were the subject of discussion by the Court of Appeal [5] in which the Court [6] said: "[25] The direction of an inquiry or referral of the case to the Court of Criminal Appeal are actions available under s 79(1) which 'may only be taken if' the gateway in sub-s (2) is passed. That is language of confinement: there is no power in the court to take action under s 79(1) unless a specified condition is fulfilled. [26] The action is to be taken by the Supreme Court, which means a judge authorised by the Chief Justice pursuant to s 75(1). Action can be taken only if it 'appears' to the judge that the condition is satisfied. In other words, it is the satisfaction of the judge as to the relevant condition which is critical. (That does not, of course, mean that the judge's decision is for that reason unreviewable, although the grounds and basis of review involve questions which will be addressed below.) [27] The content of the condition as to which the judge must be satisfied is somewhat obscurely worded. The necessary state of mind requires a 'doubt or question' as to (i) the convicted person's guilt, (ii) any mitigating circumstances in the case, or (iii) any part of the evidence in the case. However, neither the syntax nor the nature of the various elements permits any precise identification of the scope of the condition. Thus, a doubt or question as to a person's guilt could involve a doubt or question as to the procedural steps in the trial, admission of evidence, rejection of evidence, weight of the evidence, directions to the jury or any other matter upon which a finding of guilt is dependent. That includes a doubt or question as to the fitness of the accused to plead: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [125] (Heydon J, with whom members of the Court other than McHugh J each agreed). [28] The second element, 'any mitigating circumstances', is not of the same kind as 'guilt'. Reading the words in their ordinary meaning, the Crown Advocate submitted that there must be circumstances, that is events or happenings, which mitigated the culpability of the accused. She conceded that such circumstances could include the state of mind of the accused or a relevant mental illness or disability of the accused, which could affect both liability for the offence and moral culpability, as relevant to sentencing for the offence. Dealing only with the question of sentence, the precise operation of the phrase is obscure. The offender would hardly complain of mitigating circumstances which had been taken into account, although no doubt the offender would have grounds for complaint if significant mitigating circumstances were not taken into account and might wish to raise factual matters which were not known to the sentencing judge. [29] It would seem curious if no inquiry could be held where the sentencing judge had, mistakenly, sentenced on the basis of an extensive criminal record which related to another person. Although it might be possible to say that the absence of such a criminal record was a 'mitigating circumstance', that would be an artificial way of describing the error which had occurred. Similarly, the sentencing judge might have sentenced on the basis of a misapprehension as to the maximum penalty for the offence believing, for example, that it was significantly higher than that in fact prescribed. That such mistakes occur is undoubted: if the error were to be disclosed only after an appeal had been dismissed, it would seem curious that the offender could have no right of relief. The section does not limit the relationship of the doubt or question to its subject matter, and must allow for a range of connections. [30] As already noted, the three elements in s 79(2) are not self-contained. In Eastman, Heydon J noted that reference to a doubt or question about 'any portion of the evidence' gave a significant clue as to the breadth of the inquiry with respect to guilt, suggesting that the process of finding guilt was covered: at [135]. One of the points of significance raised by the Director in Eastman was that the equivalent provision discussed in that case referred, as does s 79(2), to 'guilt' rather than 'conviction'. Section 79(2) does not refer to sentence at all, although it is beyond doubt that there may be an inquiry into a sentence, because that term is expressly used in s 78(1). The looseness of the fit of the language as between ss 78(1) and 79(2) militates against reliance on the precise terms of s 79(2) to impose restrictions on the scope of the matters which an applicant may seek to raise in applying for an inquiry. [31] Further, the submission of the Crown Advocate that s 74(2) has no direct application to s 79(2) cannot be accepted. Although the word 'inquiry' does not appear in the latter provision, the reference to '[a]ction under subsection (1)' refers, relevantly, to a direction that 'an inquiry be conducted ... into the ... sentence'. That is the precise phrase which is said by s 74(2) to extend to 'any aspect of the proceedings giving rise to the ... sentence'. Whether that constitutes a 'definition' (as described in the heading of the section, which is not part of the section - Interpretation Act 1987 (NSW), s 35) is immaterial: if s 74(2) is to be given effect according to its terms, it must be possible for the Supreme Court to direct an inquiry into any aspect of the proceedings giving rise to the sentence. In accordance with Eastman, that would include a procedural error. Any procedural error which possibly gave rise to a more severe sentence than should properly have been imposed, may found a doubt or question as to a mitigating circumstance; that is, the failure to sentence the prisoner on a basis which would have led to a less severe sentence than that imposed. [32] If that reasoning is correct, there is no basis in the language to exclude errors of law: indeed, it will often be easier to identify a miscarriage of justice which has resulted from an error of law than one resulting from a mistake as to some matter of fact."
12. On the basis of the foregoing I adopt the approach that any arguable error of law or doubt as to any issue of law or factual conclusion is sufficient to warrant referral for an inquiry and, possibly, referral to the CCA to deal with the sentence as if it were an appeal. I will act on that basis, applying the foregoing principles.
13. There are other issues which require reciting. Notwithstanding that a judge is entitled to refuse to consider or otherwise deal with an application, such a refusal may not be performed arbitrarily or capriciously and the judge must act in good faith. [7] Further, the exercise of the discretion reposed in a judge of the Court appointed pursuant to the terms of s 75 of the Appeal and Review Act is confined by the subject matter, scope and purpose of the legislation. [8]
14. In Brideson, the High Court said: "[16] A legislative direction to decide does not, as a matter of ordinary statutory construction, import a discretion to give effect to that which, having regard to the scope and purposes of the legislation, is in the opinion of the decision-maker desirable. A discretion of that nature will be implied only if the context (including the subject matter to be decided) so necessitates as, for example, where the context provides no positive indication of the considerations by reference to which a decision is to be made." [9]
15. At the very least the jurisdiction or power conferred by s 79 of the Appeal and Review Act would allow a judge to whom such a preliminary enquiry has been allocated to refuse to consider the application if the application were frivolous, vexatious, misconceived or lacking in substance. [10] Further, as is clear from the terms of s 79(3)(a)(i), such a refusal may also occur in circumstances that are akin to an abuse of process in that the matter has been fully determined and/or dealt with in regular proceedings relating to the conviction or sentence.
16. Apart from that proposition, it is necessary, in exercising the power not to deal with the matter further or not to consider the matter to bear in mind that a judge allocated to deal with the matter under s 75 of the Appeal and Review Act is not "some sort of super legislative or administrative institution with an untrammelled mandate to pursue what it sees as the public interest". [11]
17. One of the aspects of the rule of law, which, for present purposes applies to administrative proceedings to be conducted judicially and in which the person is required to act judicially, is that, where a person is granted a right to make application to resolve a dispute, the jurisdiction carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. This is a fundamental element of the rule of law, requiring that every person or organisation, regardless of rank, is amenable to the jurisdiction of the courts and other public tribunals.
18. The grant of a jurisdiction or broad discretion to refuse to exercise jurisdiction conferred is rare and ought to be exercised on a narrow basis consistent, in this case, with the transparency required in relation to criminal convictions. That is even more important in circumstances where the judge of the Court so appointed is the only basis upon which, at the time that the judge is appointed, the issue in controversy can be fully examined and considered. [12]

Grounds for Review

1. Most of the issues raised by the Applicant in the application of 7 October 2020 are issues critical of the comments and/or findings of the CCA.
2. The first issue is that the Applicant complains that material described by the CCA as "new evidence" was evidence supporting "existing evidence" that was not considered or included at first instance. In the course of that complaint, the Applicant also states that he was unable effectively to present his case because there were technical difficulties associated with the audio visual link. The "technical difficulties" were that there were faces of two unknown participants on the screen, which, in the letter, the Applicant complains affected his concentration so that he was unable to present the points fluently.
3. The other aspect about which the applicant complains is that the CCA misunderstood his "motivations" for tennis coaching. Each of the issues, namely, the "new evidence" and the "motivations", in the Applicant's submissions, "could have resulted in a more favourable special circumstances/non-parole period finding".
4. The Applicant also draws attention to the comments of the sentencing judge as to the Applicant "staying silent" in circumstances where, on the Applicant's submission he did not remain silent when it counted. The reference in the Applicant's submission to the Applicant not remaining silent was a reference to the Applicant self-reporting to Anglicare and the Department of Child Protection on the issue of his assessment for child custody/visitation.
5. The Applicant's submission makes clear that the material was available at the time of the sentence hearing and not presented and complaint is made of the Applicant's legal representatives in not presenting the evidence as part of the case conference or negotiations with the DPP. It seems that the Applicant complains also about the failure by the sentencing judge, at first instance, to take into account the fact of his self-reporting.

Procedural History

1. The Applicant pleaded guilty to 5 offences: 1. Count 1: between 1 January 1996 and 30 December 1996, at Lismore Heights in the State of New South Wales, [the Applicant] did assault LC and at the time of the assault committed an act of indecency on LC, in circumstances of aggravation, namely that at the time of the offence LC was aged under the age of 16 years, being in fact aged 11 or 12 years; 2. Count 2: between 1 June 1997 and 1 June 1998, at Telopea in the State of New South Wales, [the applicant] did assault LC and at the time of the assault committed and act of indecency on LC, in circumstances of aggravation, namely, that at the time of the offence LC was aged under the age of 16 years, being in fact aged 13 or 14 years; 3. Count 3: between 1 June 1997 and 1 June 1998, at Telopea in the State of New South Wales, [the Applicant] did assault LC and at the time of the assault committed an act of indecency on LC, in circumstances of aggravation, namely, that at the time of the offence LC was aged under the age of 16 years, being in fact 13 or 14 years; 4. Count 4: between 1 January 1998 and 30 December 1998, at Telopea in the State of New South Wales, [the Applicant] did assault LC and at the time of the assault committed an act of indecency on LC, in circumstances of aggravation, namely, that the time of the offence LC was aged under the age of 16 years, being in fact aged 13 or 14 years; and 5. Count 5: between 10 February 1997 and 30 December 1997, at Eastwood in the State of New South Wales, [the Applicant] did insight TC, a person then under the age of 16 years, namely 11 years, to an act of indecency with the applicant.
2. Apart from the offences named above, the Applicant asked the sentencing judge to take into account three further offences set out in a Form 1, namely offences of: 1. Aggravated indecent assault committed on LC between 1 January 1997 and 30 December 1997; 2. Inciting LC, a person under the age of 16 years, to commit an act of indecency; and 3. Assaulting TC.
3. As pointed out in the judgment of the Court of Criminal Appeal, [13] the offending in each of Counts 1 to 4 was contrary to s 61M(1) of the Crimes Act 1900 (NSW) and carried a maximum penalty of 7 years' imprisonment. The offending in Count 5 was contrary to s 61N(1) of the Crimes Act, the maximum penalty for which was 2 years' imprisonment. The sentencing judge expressed indicative sentences and imposed an aggregate sentence. The indicative sentences were: 1. For Count 1: 3 years and 9 months' imprisonment; 2. For Count 2: 2 years and 3 months' imprisonment; 3. For Count 3: 3 years' imprisonment; 4. For Count 4: 2 years' imprisonment; and 5. For Count 5: 9 months' imprisonment.
4. The sentencing judge imposed an aggregate sentence of 5 years' imprisonment with a non-parole period of 3 years and 6 months' imprisonment.
5. As earlier stated, the Applicant sought leave to appeal the sentence. That appeal was heard on 10 July 2020 and judgment issued, granting leave to appeal and dismissing the appeal, on 22 July 2020.
6. The facts that gave rise to the offences are set out in the judgment of the CCA. It is unnecessary to recite them.
7. It is necessary to recite two paragraphs that deal with the documentary evidence upon which the Applicant sought to rely on the appeal and the non-receipt of which is the subject of complaint by the Applicant now before the Court. The CCA said: "[36] Before this Court, the applicant sought to rely upon documentary evidence, in the form of statutory declarations, an affidavit, and associated documents which were not before the sentencing judge. The majority of that material attempted to address observations made by her Honour in the course of sentencing the applicant about aspects of the report of Ms Godbee. The Crown objected to that material but in the event that the Court admitted it, sought to rely upon affidavit material in reply. [37] At the time of hearing the application for leave to appeal, the Court indicated to the applicant that it was not prepared to admit this additional material into evidence. The entirety of the material sought to be relied upon was obviously known to the applicant at the time of his sentence. It stemmed directly from the contents of the report of Ms Godbee which was tendered in his case. In those circumstances, the grounds for admission of the evidence were not established." [14]
8. In determining that the grounds for admission of the evidence sought to be relied upon were not established, the CCA relied upon the judgment in Goodwin. [15] In Goodwin, Hunt J described the practice of the Court and in particular remarked that it is not customary practice for the CCA to receive fresh evidence on sentence appeals. [16]
9. The material upon which the Applicant relied in his appeal was not, in the technical sense used, "fresh evidence". In other words, the material upon which the Applicant sought to rely on his appeal was material that could, with reasonable care, have been discovered previously. [17]
10. Moreover, as the Applicant points out in this application, the material upon which he sought to rely was not "new evidence", but was evidence that supported or corroborated existing evidence. There are circumstances where evidence other than fresh evidence or new evidence will be admitted on appeal.
11. The reasons for judgment in Goodwin, supra, refer to a prime example, which is where, at first instance, the incompetence of counsel or a legal representative has caused a miscarriage of justice and the additional material is sought to overcome that injustice or incompetence.
12. The Applicant relies upon the fact that the evidence obtained by telephone intercepts contains statements to the effect that the Applicant self-reported to Anglicare and the Department of Child Protection and that self-reporting was not taken into account either by the sentencing judge or by the CCA. However, the telephone intercepts do not go so far.
13. The telephone intercepts merely evidence an assertion by the Applicant that such self-reporting occurred. In the absence of evidence directly attesting to that self-reporting, an assertion to a victim that self-reporting occurred, during the course of an apology and/or explanation, would not be taken as evidence of the fact represented.
14. Further, the evidence of self-reporting to Anglicare and the Department of Child Protection is significantly different from the allegation that the Applicant stayed silent, in relation to the charges against him and the conduct in question, insofar as it affected his remorse and the trauma suffered by the victim. Further again, the "self-reporting" to Anglicare and the Department were noted by the sentencing judge.

Consideration

1. Criminal sentencing is an exercise of discretion. A sentence, being the discretionary exercise of the sentencing judge, is capable of being overturned on a limited basis.
2. That basis was described by the High Court in House v the King. [18] That exercise of discretion may be overturned if the sentencing judge acts upon a wrong principle; takes into account extraneous or irrelevant matters; fails to take into account mandatory considerations; or mistakes the facts.
3. If such an error occurs, then a court on appeal will exercise its own discretion and sentence afresh. Over and above identifiable errors of that kind, the sentence may have been reached or imposed, in circumstances where it is not clear that identifiable error has been committed, but the sentence is unreasonable or plainly unjust. In those circumstances, a court on appeal may conclude that there has been some manifest error or a failure to exercise the discretion properly. [19]
4. As already stated, s 78 of the Appeal and Review Act allows an application for an inquiry into a sentence. It does not allow or provide an avenue for an inquiry into the judgment of the Court of Criminal Appeal that did not result in the imposition of a sentence. This judgment of the CCA resulted in orders being made whereby leave to appeal was granted and the appeal was dismissed.
5. The extant or operative sentence is the sentence imposed by the District Court on the Applicant on 11 April 2019. That which has been raised in the application does not, on its face, appear to suggest doubt or a question as to the sentence imposed by the District Court. Further, that sentence has been the subject of analysis by the CCA on a full appeal on the sentence imposed. Further again, the sentence imposed is manifestly reasonable and within range.
6. This application seeks to deal with matters that were fully considered in the appeal. [20] Further, it does not appear to the Court that there is any question or doubt as to any mitigating circumstance or evidence.
7. In the circumstances, pursuant to the provisions of s 79(3), the Court refuses to consider or otherwise deal with the application. The Court issues the following decision: 1. Pursuant to the provisions of s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), the Court refuses to consider or otherwise deal with the application further; 2. There are no special facts or circumstances prohibiting the exercise of discretion under s 79(3) of the aforesaid Act; 3. To the extent otherwise required, the application is dismissed.

Endnotes

1. Crimes (Appeal and Review) Act 2001 (NSW) s 79(2).
2. Ibid s 79(3).
3. Ibid s 79(3)(a)(i)-(iv).
4. Ibid s 79(4). See also Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151; [2006] NSWCA 172 and Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28.
5. Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383.
6. Ibid (Basten JA, with whom Bathurst CJ, Beazley P and Price and Beech-Jones JJ agreed).
7. Buck v Bavone (1976) 135 CLR 110 at 118 (Gibbs J) and 131 (Mason J); [1976] HCA 24; Clark v Attorney General of New South Wales [2020] NSWCA 70.
8. Re Coldham; ex parte Brideson (1989) 166 CLR 338; [1989] HCA 2; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Clark v Attorney General of New South Wales, supra.
9. Brideson, supra, at CLR 347 (Wilson, Deane and Gaudron JJ).
10. Clark v Attorney General of New South Wales, supra.
11. Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 399 (Deane J, in dissent); [1987] HCA 27.
12. Ibid.
13. AB v R [2020] NSWCCA 170.
14. AB v R, supra (Bellew J, with whom Hoeben CJ at CL and Adamson J agreed).
15. R v Goodwin (1990) 51 A Crim R 328.
16. Ibid at 329.
17. Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35.
18. House v the King (1936) 55 CLR 499; [1936] HCA 40.
19. Ibid at 505.
20. Crimes (Appeal and Review) Act 2001 (NSW) s 79(3)(a)(ii).

Amendments 24 May 2021 - Minor typographical errors. 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: 24 May 2021