R v Gould [2021] NSWCCA 92
Greentree v R [2018] NSWCCA 227
Johnson v The Queen [2004] HCA 15
[2011] HCA 39
Nguyen v The Queen (2016) 256 CLR 656
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 27
Farkas v R [2014] NSWCCA 141243 A Crim R 388
Gould v RR v Gould [2021] NSWCCA 92
Greentree v R [2018] NSWCCA 227
Johnson v The Queen [2004] HCA 15[2011] HCA 39
Nguyen v The Queen (2016) 256 CLR 656[2016] HCA 17
R v Bourchas [2002] NSWCCA 373133 A Crim R 413
R v Edmonds [2020] NSWDC 687
R v Millwood [2012] NSWCCA 2
R v Way (2004) 60 NSWLR 168[2004] NSWCCA 131
R v XX [2009] NSWCCA 115195 A Crim R 38
The Queen v Kilic (2016) 259 CLR 256[2016] HCA 48
Veen v The Queen (No 2) (1988) 164 CLR 465
Judgment (7 paragraphs)
[1]
The applicant's background and its impact on her moral culpability
The respondent conceded that it was open to this Court to accept the applicant's background as recounted in the psychological report. The respondent, however, submitted that the applicant's background does not diminish her moral culpability.
As noted above, the applicant grew up in a socially impoverished household with an exposure to family violence from a young age. She had, as an adult, herself been involved in a relationship where she was the victim of domestic violence. She had also, at an earlier stage of her adult life, used alcohol to "block stuff out". She had gone on to use amphetamines in the context of her current relationship leading to relationship issues and a deterioration in her mental health.
It can be accepted that the present crime required forethought and planning. In this way it can be distinguished from a spontaneous crime of violence committed by a person who grew up in an environment where a response to violence was the norm, such as was the case in Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27. That does not mean, however, that the applicant's background does not impact her moral culpability. In Lloyd v R, McCallum JA (at [28]) set out with approval the following passage taken from the reasons of Simpson J in R v Millwood [2012] NSWCCA 2 at [69]:
"I would reject the proposition [that there was little in the circumstances of the offender that assisted him by way of mitigation]. I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been 'tragic and dysfunctional'. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders."
In the present case, I am satisfied that the applicant's background was such as to impact upon her decision making in the context of her desire to maintain her family unit. In other words, I am satisfied that the applicant's background has at least some impact on her moral culpability.
[2]
Rehabilitation
The sentencing judge assessed the applicant's prospects of rehabilitation as being "guarded". I have had the advantage of evidence of the applicant's progress subsequent to her sentencing. That evidence demonstrates positive progress on the applicant's part. Additionally, I note that, while the applicant has convictions for offences in the nature of common assaults, stealing, property damage and driving offences, she has not previously committed any offence of this level of seriousness. I am of the view that her prospects of rehabilitation are good.
[3]
Remorse
At first instance the applicant relied upon her expression of remorse to the psychologist. The Crown below submitted that this hearsay report should not be accepted. The sentencing judge, perhaps understandably, given the offences he was dealing with, was not prepared to find that the applicant was remorseful. However, again I have the benefit of evidence of the applicant's progress in custody. While that evidence is primarily relevant to the applicant's rehabilitation it also speaks to the related issue of remorse. The applicant's efforts to address her offending support a finding of remorse. Further, this subsequent conduct should also be seen in the light of the frank admissions to the offending when confronted by the authorities. This included her admission to an intention that the letters be used in sentence proceedings in the future which, absent such admission, it is doubtful the Crown could prove.
[4]
Other aspects of the applicant's subjective case
In addition to the above matters, I have had regard to the evidence of the impact of the COVID-19 pandemic on the difficulty of the applicant's custody. I also accept that the applicant's experience of custody has been made more difficult as a result of her anxiety surrounding her potential deportation.
[5]
Sentence
I have had regard to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The present offence is one that strikes at the heart of the integrity of the administration of criminal justice. General deterrence must play an important role in the determination of the sentence, albeit that that weight should be somewhat reduced given my finding as to the applicant's reduced moral culpability. Retribution and denunciation are important factors having regard to the nature of the crime, although I would again allow a slight moderation in their role in accordance with my view of the relevance of the applicant's background. I do not, having regard to my findings as to the applicant's remorse and rehabilitation, consider personal deterrence as requiring significant weight, particularly in the light of the sentence that must be imposed, having regard to the other purposes of sentencing. A sentence of full-time imprisonment is required: cf s 5 of the Crimes (Sentencing Procedure) Act.
Like the sentencing judge, I am not of the view that one offence requires a longer sentence than the other. I am of the view that, having regard to the issues addressed in the psychological report, and the evidence of the applicant's progress in custody, there are special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act. After allowing a discount of 25% for the pleas of guilty, I regard a sentence of 3 years with a non-parole period of 2 years as appropriate in each case.
I am not of the view that there is any call for cumulation between the sentences. While there were two letters, the evidence suggests they were prepared at the same time, and with the intention that they be read together. Both letters were intended to be used for the bail application and on sentence. The applicant could have just as easily written a single letter which purported to refer to what had been said in an earlier letter. This case is more like Johnson v The Queen [2004] HCA 15; 78 ALJR 616 than Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17. Given this, while the preparation of the two letters, strictly speaking, involved separate acts, I am of the view that the sentence to be imposed for each offence is capable of encompassing the overall criminality: see generally R v XX [2009] NSWCCA 115; 195 A Crim R 38. Both sentences will therefore commence from the date the applicant entered custody on 6 April 2020.
[6]
Orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal allowed.
3. Quash the sentences imposed in the District Court on 6 November 2020 by his Honour Judge Colefax SC.
4. In lieu thereof, with respect to each count on the indictment, sentence the applicant to imprisonment for a non-parole period of 2 years commencing on 6 April 2020 and concluding on 5 April 2022 with a balance of term of 1 year which is due to expire on 5 April 2023.
5. I note that the applicant became eligible for parole on 5 April 2022.
[7]
Amendments
27 June 2022 - [25] cases italicised
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Decision last updated: 27 June 2022
The remarks on sentence are contained in R v Edmonds [2020] NSWDC 687.
In relation to the objective seriousness of each offence, Colefax SC DCJ found (at [18]) that they fell "slightly above the mid-range offence, given the two uses to which each document was ultimately intended to be used - and, in the case of the bail application, was successfully used." His Honour did not find any additional aggravating factors.
With respect to the applicant's subjective case, his Honour noted that the applicant did not give evidence in the sentence proceedings, but rather advanced her subjective circumstances through the psychological report. After outlining her subjective circumstances as contained in the psychological report, his Honour found that the applicant posed a medium risk of reoffending, her criminal record disentitled her to leniency (although it was not an aggravating factor), and her prospects of rehabilitation were guarded.
Most importantly for the purposes of this application for leave to appeal, is his Honour's finding at [36] that "in the absence of any independent and objective supporting evidence, [his Honour was] not persuaded on the balance of probabilities that [the applicant] had a dysfunctional upbringing, that [the applicant] had later in life traumatic experiences, that [the applicant has] an adjustment disorder, or that [the applicant is] remorseful for [her] offending." In so finding, his Honour noted that the applicant did not give oral evidence to affirm the truth of the history contained in the report, or to express her remorse. His Honour also relied on the applicant's prior criminal history of dishonesty, and more pertinently, the nature of the offences for sentence given they involved the active misleading of a court. This aspect of his Honour's reasons is the subject of complaint articulated in the first ground of appeal.
Colefax SC DCJ was satisfied that the applicant was entitled to a 25% discount for the utilitarian value of her early plea but was not satisfied that the assistance she provided to authorities was sufficient to ground a further discount. His Honour also found that, although the two offences were discrete, they were part of an "ongoing course of conduct" and determined that "there will be meaningful partial concurrency". (His Honour noted that in making this determination with regards to concurrency, he has not lost sight of the dual purposes for which the offences were committed.)
Colefax SC DCJ declined to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period and imposed the sentence set out above.
The nature of sentence proceedings
No order was made in the present matter that the Evidence Act 1995 (NSW) should apply to the proceedings, or any part of them: see s 4 of the Evidence Act. The consequence of this, on current authority, is that the common law of evidence applied: R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413 at [61]; Farkas v R [2014] NSWCCA 141; 243 A Crim R 388 at [14] and [89]; BS v R [2021] NSWCCA 39 at [56]. However, that does not entail the strict application of those rules. In Bourchas, Giles JA (Levine and Sperling JJ agreeing) said at [61]:
"… In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no-one's interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon. But if there is good reason for objection to evidence in sentencing proceedings the objection when taken must be resolved and, apart from statute, must be resolved by application of the rules of evidence. In the absence of a direction pursuant to s 4 of the Evidence Act, the law of evidence unaffected by that Act applies."
The efficient operation of the courts in sentencing offenders is heavily dependent on such an approach. While a sentencing judge is not bound by the conduct of the parties, he or she is presiding over adversarial proceedings. In an adversarial context, the parties will make decisions as to the material to be put before the Court, and will join issue with respect to matters of fact and law. Where no issue is joined between the parties, the avoidance of practical injustice (and thus procedural fairness) will generally require a party to be made aware if issue is to be taken by the sentencing judge. The principles were summarised by Garling J (with whom Macfarlan JA and Johnson J agreed) in Weir v Regina [2011] NSWCCA 123 as follows, at [64]-[67].
"64 It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264.
65 The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose.
66 The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].
67 One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18]."
Ground 2 - assessment of the objective seriousness
While the offences were not standard non-parole period offences, the sentencing judge assessed both offences as being "slightly above the mid-range". While it was not necessary to use the language of standard non-parole period offences, the determination of the objective gravity of the offending remained an integral part of the sentencing exercise: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20]; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472; Amiri v R [2017] NSWCCA 157 at [26]. It is well-established that the assessment of the objective gravity of an offence is quintessentially a matter for the sentencing judge and is reviewable only on a limited basis: see Mulato v R [2006] NSWCCA 282 at [37], [45]-[46]; and note Greentree v R [2018] NSWCCA 227 at [34]. Despite the necessary restraint inherent in the exercise, I have come to the view that it was not open to the sentencing judge to find the offences were above the mid-range of objective seriousness.
There is no doubting that these were serious offences. Documents were created for use in criminal proceedings with the intended effect of influencing decisions on bail and on sentence in relation to extremely serious offending. They were, in fact, instrumental in the applicant's partner obtaining bail. The sentencing judge appears to have been significantly influenced by the continuation of the offences, in the sense of the intention that they be used in both bail proceedings and on sentence, distinguishing them from an offence isolated to a relatively confined act or period. The date range in the indictment spanned the period from 24 August to 10 October 2017. That latter date is the date on which the letters were used in the bail application. Nonetheless, it remains relevant that it was the applicant's intention that both documents would be used at some unspecified time in the future for the purposes of her partner's sentencing.
While the above matters make the offences of some seriousness, placing the seriousness of an offence in the scale of seriousness of such offences can only sensibly be done by considering the full range of offending covered by the provision. While human imagination is always capable of inventing a more serious offence, it, nonetheless, remains the case that the offence with which the applicant was charged encompasses offending that is significantly more grave. The applicant's offence was not particularly sophisticated. The veracity of the letters was easily checked, with substantial risk to the applicant of detection. While the offences were clearly planned, and the applicant had substantial time over which she might have withdrawn, the period of the indictment was nonetheless relatively confined.
Evidence relevant to resentence
For the purposes of resentence, the applicant relied on the affidavit of Ms Pip Hill, the applicant's solicitor affirmed 19 April 2022, in addition to the psychological report of Ms North which was before the sentencing judge. Ms Hill deposes as to the following matters.
Ms Hill gives evidence of the impact that COVID-19 has had on the applicant's experience of custody, which includes cancellations to bookings for legal conferences with the applicant due to staff shortages, the imposition of a three-week lockdown in the gaol to avoid the spread of COVID-19, the stress that COVID-19 has generally caused the applicant, and restrictions to contact visits. The applicant informed Ms Hill that her parents and her three children have only been able to visit in-person three or four times during her time in custody, although she does see her three children once a week by video call and speaks with them on the phone every second day.
The applicant's case management file shows that the applicant has been engaging in the Intensive Drug and Alcohol Treatment Program for Women ("IDAPT") since being sentenced. She has completed the Real Understanding of Self-Help program, which is the first component of the IDAPT. The applicant was involved in an incident in mid-January with another inmate (in which the other inmate was the alleged aggressor), which has led to her suspension from the IDAPT for 8 weeks. The program facilitator has indicated that this was out of character for the applicant.
The applicant also put before the Court evidence of the mandatory cancelation of her visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). The applicant was notified of this shortly after she was sentenced. She has responded in writing, seeking revocation of the cancellation but has not yet received a determination as to this matter. The applicant submitted this uncertainty was relevant to the applicant's experience of custody (even if the fact of deportation itself is not a matter relevant to the determination of sentence, as to which see Kristensen v R [2018] NSWCCA 189; Ke v R [2021] NSWCCA 177).
The observations of McCallum JA (with whom Hamill and Cavanagh JJ agreed) in Lloyd v R [2022] NSWCCA 18 at [47] are also apposite:
"Where the report of a mental health professional is admitted without objection, qualification as to its use or cross-examination of the author, no principle of law requires the sentencing judge to exercise "very considerable caution" before relying on its contents absent evidence from the offender. It is by no means beyond debate that the court is the only forum in which a reliable medical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance."
Returning to the present matter, the sentencing judge plainly indicated to the applicant's counsel that, despite the degree of dissatisfaction with the process, counsel did not need to address on what were described as "Bugmy matters", the factual foundation for which was contained in the report. This, together with his Honour's statement that "I think I'm not in a position to reject the version of events given by the offender" effectively foreclosed the applicant's counsel from making submissions as to why the applicant's account to the psychologist should be accepted or, alternatively, reconsidering his decision not to call the applicant. This amounted to a denial of procedural fairness. Accordingly, ground 1 is made out.
The applicant's offending can be contrasted with offending in a case such as Gould v R; R v Gould [2021] NSWCCA 92. While the offender in that case was charged under a different provision, attempting to pervert the course of justice contrary to s 43 of the Crimes Act 1914 (Cth) (the course of justice being in the context of federal judicial proceedings), with a lower maximum penalty (10 years), that case provides an example of offending at a significantly greater scale. In that case the offender, over a period of about six months arranged for the attendance of, and coached a witness to give false evidence in tax proceedings in the Federal Court involving millions of dollars. I do not mean to suggest that the amount of money makes those proceedings more serious than the criminal proceedings involved here. What did make the offending more serious was, as described by Adamson J, the sustained, sophisticated, deliberate acts of the offender in circumstances where the evidence of the witness provided the foundation for the proceedings brought by the taxpayers.
While the present offence was arguably more serious than typical offences of perverting the course of justice, that does not take it above the mid-range. While this Court's decision in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 was overturned by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 the admonition in that case at [101], that the "typical" or "common" case is not necessarily a case falling in the mid-range of seriousness remains valid. As with many, perhaps most, offences, offences of very great seriousness, falling in the upper end of the scale of objective seriousness, tend to occur less frequently. Comparing a particular offence to what is commonly seen has the potential to lead to a distortion in the perception of where an offence falls in the scale.
In the present case it is noteworthy, though by no means conclusive, that the Crown at first instance submitted the offences to be within the mid-range. Ultimately, and with some reticence, I am of the view that, having regard to the broad spectrum of potential offending against the section, it was not open to find the objective gravity of the offending in this case to be above the mid-range of objective seriousness. Ground 2 is made out.