Fahmy v R

The Offence

1. The applicant was born in September 1994. By 2017, he had accumulated a significant number of criminal convictions. As at 1 November 2017, he had outstanding charges before two separate courts, namely Campbelltown Local Court and Burwood Local Court. The bail conditions required him to report to Campsie Police Station on Saturday, and Bankstown Police Station on Monday and Friday.
2. The applicant sought to vary his bail conditions. He attended Sutherland Police Station with a bail variation application. He wrote on the application that he wanted to change his bail conditions so that he only reported to one police station, wanted to change his address and agreed not to drive a motor vehicle without a licence. A sergeant at the police station wrote on the application form that there was no objection to the change in address and the change in the reporting police station. However, he also wrote that the police did not support any other changes without further consultation with the officer in charge. The officer in charge was unavailable at that time.
3. The applicant then attended the registry at the Sutherland Local Court. The Registrar signed and dated the form, approving the changes. Later that day, the applicant returned and approached another registry officer. The applicant altered that part of the form that had been completed by the sergeant by adding the words "or cancelled" thereby purporting to indicate that the police supported the cancellation of all reporting conditions. The applicant told the registry officer that that was what he wanted. The registry officer contacted the sergeant who advised that he did not agree to that. Soon afterwards, the applicant was arrested at the registry.

The Sentencing Judgment

1. Five matters should be noted about Whitford DCJ's sentencing judgment.
2. First, his Honour noted the maximum penalty for the offence was 14 years imprisonment. His Honour found that this offence was not planned. Ultimately, his Honour concluded that it was "relatively low on the spectrum" of offending for offences of its kind.
3. Second, consistent with what I have stated, his Honour noted that the applicant had a relatively lengthy criminal record as a juvenile as well as offences as an adult of assault, resist arrest, driving offences and drug supply. His Honour concluded that his criminal record disentitled him to any leniency and noted that the subject offence was aggravated by the applicant being subject to conditional liberty at the time it was committed.
4. Third, his Honour noted the effect of a report of a consultant psychiatrist who diagnosed the applicant with a borderline personality disorder and polysubstance abuse disorder.
5. Fourth, his Honour concluded that "one can only be guarded about the offender's future prospects" of rehabilitation. His Honour noted that there were "some positive indicators" being the "continuing love and support of his family", a matter I will return to.
6. Fifth, his Honour made a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which is reflected in the sentence that was imposed.
7. Two further matters should be noted about the sentencing judgment which were of particular relevance to the grounds of appeal.
8. The first concerns the applicant's family and upbringing. As noted, his Honour considered that the love and support that the applicant derived from his family was a positive indicator in terms of his prospects of rehabilitation. His Honour recorded as follows: "At the time of the offence [the applicant] was 23 years of age and he is now just short of 25 years. He was born in Egypt in 1994 and is the eldest child of his parents' union. He has two younger sisters both still in high school. [The applicant] is privileged to have the ongoing support of his family and he proposes to reside with them upon his eventual release from custody."
9. This finding was supported by the material that was tendered on behalf of the applicant before his Honour. Thus, a Chaplain in the Coptic Orthodox Church who worked for the Department of Corrective Services, Father Tadros El-Bakhoumi, provided a statement in which he stated that he personally knew the applicant and his family, being members of the Coptic Orthodox Church in Sydney. He described the applicant's family as a "strong good Christian family and I believe that the peer pressure of bad friends is what changed [the applicant] and what led to him being in custody especially in his young age". Father Attia from the St George Coptic Orthodox Church provided a reference which stated, inter alia, "I know his parents and family very well and continue to work with them along with Mr Fahmy". A letter was provided from each of his parents to the same effect. The written submissions lodged on behalf of the applicant referred to these testimonials and referred to the applicant having the "ongoing support of his family" and noting that he did propose to reside with them upon release from custody.
10. In addition, a psychiatrist, Dr Tanveer Ahmed, provided a report dated 18 August 2019 which recounted the applicant "den[ying] any childhood history of abuse" and repeatedly stating "I come from a good family". Dr Ahmed noted that he "remains close and well supported by his family". There was also tendered a short letter from another psychologist, Ramsey Andrews in which he stated that he knew the applicant "and have seen him in the past to help him with his issues".
11. The only hint of a concern about his upbringing was expressed in a statement of a social worker, Ms Armonious, who said that the applicant was referred to her service "for issues in the family home and drug use". The balance of her statement discussed his attempts to address his drug addiction.
12. Second, Judge Whitford gave consideration to the time already spent by the applicant in custody. Prior to the sentence hearing, an email was sent to his Honour's Associate reflecting the "joint position" of the applicant's legal representative and that of the Crown. The email stated that it was agreed that since the date of the offence, being 1 November 2017, the applicant had spent 551 days of "total time in custody" which was referrable to the subject offence and other offences. This included a period of 54 days when he was bail refused from 20 January 2018 to 14 March 2018 but not for the offence he was sentenced for by Judge Whitford. The email also stated: "In relation to pre-sentence custody referrable to this matter, [the applicant] has been formally refused bail since 1 April 2019 which accounting for the 2 days in November 2017 [when he was initially refused bail] equates to 152 days in custody on the sentence date 28 August 2019."
13. Consistent with this, in the sentencing judgment, Judge Whitford noted that the applicant was arrested on the day of his offence and spent an initial two days in custody before being granted bail. His Honour then stated as follows: "His bail in respect of the present offending was later revoked on 1 April this year. [The applicant] has been in custody solely referrable to this matter for 152 days as at today. However, during the period since 1 November 2017, [the applicant] has spent some 18 months and 3 days, that is 551 days in custody. That period has predominantly been spent bail refused in relation to other unrelated matters. Some of those matters were eventually withdrawn or dismissed. Another, or others, are still pending. In addition [the applicant] served a 3 months fixed sentence between 20 June 2018 and 19 September 2018 in relation to yet another unrelated matter. The time spent in custody will be taken into account on sentence in a manner I will explain shortly."
14. His Honour then returned to this topic stating as follows: "I consider it appropriate to exercise my discretion to backdate the sentence to coincide in very large part with the long period [the applicant] has been on remand for matters still pending or already withdrawn or dismissed. Doubtless if he is ever to be sentenced in relation to any matter still pending, account can be taken then of the fact of this concurrence. If he is never sentenced for those matters, it is only just that the [applicant] receive some account for this long period of full-time custody".
15. As noted, the sentence was backdated to commence on 28 May 2018 which was some 457 days prior to the date the sentence was imposed.
16. For the sake of completeness, I note that Judge Weinstein backdated the sentence his Honour imposed so that it commenced on 20 July 2019, being 38 days prior to the expiration of the sentence imposed by Judge Whitford. This reflected a period of 38 days from the date of his arrest on the offence dealt with by Judge Weinstein on 19 April 2018 until the commencement date of the sentence imposed by Judge Whitford being 28 May 2018.

Ground 1: Failure to Further Backdate the Sentence

1. Ground 1 of the appeal is that "[t]he sentence[ing] judge did not take into consideration time spent in custody, [f]rom 20/01/2018 to 14/03/2018. This period is a total of 53 days, it was not taken into account for any other offence and all charges were dismissed or withdrawn".
2. The applicant was unrepresented on the application for leave to appeal and extend time. In the written submissions that accompanied his application, he pointed to the relevant custody records which showed that he served a period of 53 days in custody from 20 January 2018 to 14 March 2018, for charges which were later dismissed or withdrawn. In effect, this period of 53 days (or 54 days) represents the difference between the total time spent in custody prior to 28 August 2019 on the one hand and the sum of the two periods of backdating provided by the sentences imposed by Judge Whitford and Judge Weinstein on the other.
3. Section 47(2)(a) of the Sentencing Procedure Act empowers a Court to impose a sentence that commences on a day before the day in which the sentence is imposed. Section 47(3) obliges a court in doing so to take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates. Similarly, s 24(a) requires that, in sentencing an offender, the court must take into account any time for which the offender has been held in custody in relation to the offence, being the offence the subject of the sentence.
4. Together, these provisions require the Court to take into account any pre‑sentence custody for the subject offence when determining the date on which the sentence commences. Otherwise, the Court can, but is not necessarily obliged to, consider time spent in custody on other offences even in respect of offences which were later dismissed. In particular, an offender does not acquire any "form of credit" in relation to custody served in relation to an offence for which they are later acquitted or discharged (Refaieh v R (2019) 272 A Crim R 245; [2018] NSWCCA 72 at [74]).
5. In this case, Judge Whitford backdated the applicant's sentence by a period that far exceeded the time that he had spent in custody solely referrable to the subject offence. In doing so, his Honour explained that he was having regard both to the amount of time that was spent referrable to the subject offence, the fact that he had spent time in custody in respect of charges that had been withdrawn or dismissed and the potential that the outstanding charges could also be withdrawn or dismissed in the future. In addressing his pre‑sentence custody in that way, his Honour specifically addressed the period of custody that the applicant now purports to assert that he is entitled to obtain a further backdate for. In particular, the total period of 551 days that his Honour referred to included the period of 53 days that the applicant is referring to in this ground. Judge Whitford clearly did take that period into account. There is no possible basis for contending that there was any error on the manner in which his Honour addressed the issue of backdating.
6. Subject to considering ground 2, I would refuse leave to raise ground 1 and refuse an extension of time based on that ground.

Ground 2: New Evidence of Social Disadvantage

1. In his statement of grounds of appeal, the applicant stated "Bugmy and Fernando principles are present in my case".
2. With this ground, the applicant seeks to adduce further evidence on appeal concerning his family circumstances. In his written submissions, he stated that he would "like the court to please consider the principles in Bugmy v R" (2013) 249 CLR 571; [2013] HCA 37)", specifically as reducing his moral culpability. He submitted that he has experienced "unique disadvantage" and that he "grew up in a violent, chaotic and highly dysfunctional environment". He asserted that some of the evidence said to demonstrate this social deprivation was before Judge Whitford. However, on this application, the applicant sought to read his own affidavit and tender various statements that were placed before Judge Weinstein.
3. In an affidavit bearing the date 25 March 2021, the applicant stated that, at the time of the sentencing hearing before Judge Whitford, he did not appreciate the significance of the material he now seeks to rely on. He said that he had no knowledge of the effect of Bugmy and that he found communication with his legal representatives difficult. In an affidavit bearing the date 13 April 2021, the applicant stated that he "grew up in a violent and highly dysfunctional environment".
4. In support of this ground, the applicant sought to rely on a psychological assessment report from Mr Andrews dated 30 November 2020. Under the heading "Personal history and background" Mr Andrews recounts that the applicant "grew up in a highly dysfunctional environment characterised by deprivation with no social support networks" and that he was "reportedly physically beaten and threatened by his father as well as other extended family members". As noted, Mr Andrews had previously provided Judge Whitford with a report that merely stated that he knew the applicant "and has seen him in the past to help him with his issues".
5. The additional material relied on in support of this ground also included another report from Ms Armanious, dated 29 September 2020. In this report, Ms Armanious stated that the applicant's "family were complete[ly] dysfunctional" and the father was "very violent and on several occasions he threw [the applicant] out of the family home for long periods of time".
6. Also included in the additional material sought to be relied upon was a letter from Father Attia from the St George Coptic Orthodox Church that recounts the applicant being "raised in a highly dysfunctional family environment characterised by violence, abuse and neglect". The contents of the letter provided by Father Attia to Judge Whitford have already been noted (at [18]). The applicant also relied on a letter from a firm of solicitors that noted that they act for the applicant in relation to a claim concerning his suffering "serious sexual and physical abuse" whilst in juvenile detention.
7. Lastly, the applicant referred to the finding made by Judge Weinstein when this material was tendered, namely that it "indicates … a significantly deprived background which diminishes his moral culpability". Of itself, that finding is not evidence of which it states, (Evidence Act 1995, s 91; DAO (No 3) v R [2021] NSWCCA 103) although, it is no doubt relied on as persuasive of what an experienced judge found when regard was had to some of this material.
8. The principles applicable to the tender of further evidence on sentence, other than that received on the usual basis (see Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]), were recently reviewed by Wright J in Korovou v R [2021] NSWCCA 28. His Honour referred to the analysis of Simpson J, as her Honour then was, in Khoury v R [2011] NSWCCA 118 at [114] to [121] ("Khoury"). In Khoury, her Honour acknowledged the logical difficulty in attributing error of the kind identified in House v R (1936) 55 CLR 401 to a sentencing judge based on evidence of events that occurred after sentencing (at [110] to [113]). Her Honour noted that the rigid application of this logic had the potential to cause injustice and this "ha[d] led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence" (at [113]). Her Honour stated that the overall justification for this approach was that, "even if no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances" (at [113]).
9. The same logical difficulty applies to evidence of events or circumstances that occurred before sentencing that was not adduced before the sentencing judge. In some cases, such evidence has been admitted and considered on the basis, inter alia, that the conduct of the legal representatives in not adducing it was so incompetent that a "miscarriage of justice" occurred even though that phrase is only applicable to conviction appeals (Criminal Appeal Act, s 6(1); eg Raymond John Munro v Regina [2006] NSWCCA 350 at [24] to [25] per Beazley J; Puan v R [2009] NSWCCA 194 at [54] and [55] per Howie J; Garland v R [2009] NSWCCA 217 at [26] per McCallum J, with whom McClellan CJ at CL and Howie J agreed). Betts provides some support for that approach in that it reviewed the approach this Court adopted in rejecting evidence that was sought to be tendered on the "usual basis" by reference to whether that had occasioned a "miscarriage of justice" (Betts at [2] and [59]).
10. As noted by Simpson J in Khoury, the admission of such evidence is presently governed by a "sub-set of evidentiary propositions" and is otherwise "discretionary" (at [113] and [121]). Her Honour's analysis suggests that the principles concerning the addition of either "fresh" or "new" evidence on an appeal against conviction under s 5(1) (b) and s 6(1) of the Criminal Appeal Act are part of the sub-set of principles to be applied, although they may not be determinative (at [107] to [108]). As noted in his affidavit, the applicant says that he was not aware of Bugmy at the time of the sentencing before Judge Whitford. In his oral submissions he submitted that he had developed a different understanding of what was a "normal" upbringing compared to a dysfunctional one. However, there is no reason to believe that his legal representatives were not aware of the potential significance of Bugmy to someone with a dysfunctional background. Their conduct is only explicable on the basis that they did not have sufficient evidence to raise it but did have evidence that warranted adducing evidence that he has strong family support which might result in a positive finding about his prospects of rehabilitation. I am not satisfied that this evidence is "fresh" in any relevant sense.
11. In any event, there is a much deeper consideration that warrants the rejection of the tender of this additional evidence. At the commencement of her analysis on this topic in Khoury, Simpson J identified the "general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence" (at [104] citing R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377). Her Honour noted that that principle "applies no less to applications for leave to appeal against sentence than it does to conviction appeals" ([id]). This proposition has its counterpart with evidence tendered in this Court on the "usual basis" in that such evidence cannot be relied on to mount a "new and different" case to that put forward at first instance (Betts at [2]).
12. This principle would be very much violated if a party was, without sufficient cause being shown, able to tender material to to mount a case on sentence that completely contradicts the case was that presented to the sentencing judge. As already noted, before Judge Whitford the case sought to be made on behalf of the applicant was that he came from a good and supportive family and that was a matter that tended in his favour on any assessment of prospects of rehabilitation. He now seeks to mount the completely opposite case by contending that his family treated him so appallingly in the past that he had a dysfunctional upbringing and his moral culpability was reduced. The family that he now seeks to portray as resulting in his upbringing being traumatic and dysfunctional is incapable of providing him with the "ongoing support" to rehabilitate himself that was submitted to Judge Whitford.
13. It is one thing to allow a party to adduce fresh or even new evidence on appeal on sentence to supplement the case that was run, to bring forward something that was not known previously, or that was overlooked. However, this case is something different, namely an attempt to mount a case that was the complete opposite to that which was presented on the applicant's part to the primary judge by his legal representatives and without the demonstration of any incompetence or the like on their part. To allow evidence to be adduced on that basis would be inconsistent with the nature of the appeal function exercised by this Court and to refuse to allow its tender would not occasion any miscarriage of justice. I would refuse leave to adduce this evidence.
14. For the sake of completeness, I note that one of the many bases of the Crown's objection to the receipt of this additional evidence by the Court was that it did not have the opportunity to cross‑examine the authors of the various statements. In response, the applicant offered to make himself available for cross‑examination. Given the rejection of this evidence, it is not necessary to consider this further.
15. As there was no evidence before Judge Whitford to support any invocation of the principles in Bugmy, and more importantly the case conducted on the applicant's behalf before Judge Whitford was to the complete contrary, it follows that no error has been demonstrated on the part of his Honour in failing to address it.
16. I would also refuse leave to raise this ground.

Proposed Orders

1. I propose the application for the extension of time be refused and that the application for leave to appeal be refused.
2. N ADAMS J: I agree with Beech-Jones J.

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: 04 June 2021