Finnigan v R

Judgment

1. BRERETON JA: I agree with Cavanagh J.
2. WILSON J: I agree with Cavanagh J for the reasons his Honour has given.
3. CAVANAGH J: The applicant seeks leave to appeal from a sentence imposed upon him in the District Court by Judge King SC on 30 October 2020 following a plea of guilty. The applicant pleaded guilty to one offence of break, enter and commit a serious indictable offence, namely assault occasioning actual bodily harm, aggravated by being in company contrary to s 112(2) of the Crimes Act 1900 (NSW).
4. The offence had a Form 1 offence attaching, namely failing to disclose the identity of the driver of a motor vehicle, contrary to s 17(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the Form 1 offence).
5. The applicant seeks: 1. Leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW); and 2. That the sentence be set aside and he be resentenced.
6. The applicant was sentenced to a term of imprisonment of 4 years and 6 months with a non-parole period of 3 years. The sentence commenced on 30 October 2020 and thus the applicant is first eligible for release on parole on 29 October 2023.
7. The applicant seeks leave to appeal on four grounds being: 1. The sentencing judge erred in finding that the offending was "unprovoked". 2. The sentencing judge erred by qualifying his finding about remorse due to the applicant's failure to disclose the identities of his co-offenders. 3. The sentencing judge erred by taking into account and thus double counting the circumstances of aggravation that the applicant used corporal violence on the victim and that the applicant intentionally inflicted actual bodily harm. 4. He was denied procedural fairness and the sentencing proceedings miscarried by reason of the sentencing judge's intervention during the applicant's evidence.

Circumstances of the offending

1. There was a statement of agreed facts, albeit having regard to the evidence presented on the sentencing hearing, there was some uncertainty about whether all the facts were agreed and what other facts were in dispute.
2. On 26 October 2020, Sharon Lloyd (the partner of the victim) and Sonia Finnigan (the mother of the applicant) spent a number of hours drinking alcohol together. They started off at the unit belonging to the victim in Earlwood before adjourning to the Marrickville Golf Club, where they met the victim. They stayed there for two hours before returning back to the unit in Earlwood where they continued drinking for several hours.
3. After dinner, an altercation ensued. Following some behaviour by Ms Finnigan that the victim did not appreciate, the victim yelled at Ms Finnigan telling her to get out of his house. They then both started hitting each other. Ms Lloyd intervened, grabbing the back of the victim's head and pulling a clump of his hair out. The victim responded by telling them both to get out of his house.
4. On her way out, Ms Finnigan damaged the television and coffee table. The victim responded by pushing her out of the front door. She then turned and punched him under his eye. The victim responded by jabbing her in the face, around the mouth and nose, with his left hand.
5. Both Ms Finnigan and Ms Lloyd then left the premises. Ms Finnigan took a photo of herself and sent it to the applicant.
6. When the applicant called her in response, Ms Finnigan said, "Dave, Sharon's husband, did this to me". The applicant said he was coming, meaning coming over to where she was. Both Ms Finnigan and Ms Lloyd waited. At one point, Ms Finnigan walked up the street but she subsequently returned to the driveway of the premises.
7. The applicant arrived shortly thereafter (estimated to be 20 or 30 minutes), got out of his utility vehicle and started walking up the driveway holding a hammer. Ms Lloyd was heard to be saying to him, "Please don't. Please don't".
8. Despite this, the applicant continued up the driveway to the unit where the original altercation took place. He started banging on the door. At the same time, another car carrying three men was seen to arrive. Those men got out of the car and also started walking towards the unit block. One of the men was holding a piece of metal.
9. The applicant then used the hammer to hit the front door of the unit. The victim responded by opening the door. He saw the applicant holding the hammer and another man holding the length of metal. The victim was struck in the face, although it was not an agreed fact that he was struck with the hammer and the sentencing judge made no such finding.
10. The force of the blow to the victim caused him to turn around. He then felt a blow to the back of his head. He fell and lost consciousness. He must have also suffered blows to his ribs at some point, as he sustained rib fractures during the attack. The applicant said in evidence on the sentencing hearing that he had punched the victim whilst he was on the ground.
11. The Police arrived and took the victim to hospital. The applicant and the three other men had already left the scene.
12. The victim sustained a number of severe injuries, including bleeding of the brain, facial fractures, rib fractures, bruising, a cut to his lip and bleeding in his eye. He remained in hospital for a period of four days.
13. The applicant was arrested on 30 October 2019.

Remarks on sentence

1. There was no agreed fact that the victim was hit in the face by the applicant with the hammer. As he observed, the sentencing judge was unable to ascribe any particular injury to any particular action or weapon and did not do so.
2. His Honour described the attack as a brutal and savage assault carried out by the offender and/or those whose assistance he had enlisted. He said: "Objectively, it is a very serious example of such an offence. The injuries inflicted on the victim must be regarded as being at the highest end of the range constituting actual bodily harm, prior to any injuries escalating to the next level of seriousness, which would be grievous bodily harm …"
3. He considered that the victim was fortunate not to have suffered far more serious consequences from the injuries inflicted.
4. His Honour referred to the fact that the offender and his assistant or assistants left the premises with the victim unconscious on the floor of the unit. They did not arrange for anyone to attend to assist him in circumstances where it must have been obvious that he had been seriously injured.
5. In terms of the applicant's subjective case, his Honour rejected the applicant's contention that he attended at the premises merely for the purposes of ensuring his mother's safety and taking her away from the premises. Further, he rejected the applicant's submission, based on the report of a psychologist, that there was a causal relationship between the psychological condition from which he was said to be suffering and the commission of the offence.
6. His Honour did not consider that the offender was protecting his family. He considered that the applicant was carrying out an act of revenge which he described as "a vigilante action".
7. His Honour rejected the applicant's evidence on sentence as to what happened at the victim's premises. His Honour observed that it was contrary to the agreed facts. The applicant provided a version of events on sentence which involved him dropping the hammer to the floor when the victim opened the door. He says that the victim then hit him and he blacked out and ran downstairs because he was hurt. He said that he had been hit in the face. He then left to get his mother and take her home. His Honour did not accept this evidence.
8. His Honour observed that the applicant had been asked in cross-examination how the victim came to suffer five broken ribs. The applicant indicated that he had bent over and punched the victim on the ground whilst he was unconscious on the floor. He denied that he had kicked the victim whilst he was on the floor.
9. His Honour noted that having initially denied in evidence-in-chief any real knowledge of what happened, in cross-examination he suddenly knew much more. This all led to the sentencing judge rejecting the applicant's evidence and concluding that the applicant had not been truthful. He similarly found that the applicant's partner had not been truthful.

Ground 1: Provocation

1. In the applicant's written submissions on sentence, the applicant identified as a mitigating factor, pursuant to s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the assertion that he was provoked by the victim.
2. In submissions on sentence the applicant identified the following circumstances as supporting that he was provoked: "Although the victim had no direct contact with the offender, pursuant to paragraph 11 of the statement of facts, 'Sonia took a photograph of herself using her iPhone. Within one minute, Sonia's phone rang. Sharon could hear a male on the phone whom she recognised as the offender Joshua Finnigan. Sharon heard the offender say, "What the fuck happened to you?", Sonia said "Dave, Sharon's husband did this to me." The offender said, "I'll be there in a minute." We would submit that the Court take into account that considering these factual circumstances, a reasonable person in the accused's position would seek to come to the aid of their mother."
3. Despite this submission, the sentencing judge found that: "The attack was an unprovoked, brutal and savage assault on a 55-year-old victim."
4. His Honour then went on to identify why he described the offence as being unprovoked. Plainly, his Honour was responding to the submission that the applicant was provoked and that should be considered a mitigating circumstance. His Honour observed that:

• The applicant was not present at any time when there was any interaction between his mother and the victim.
• It was his mother who was responsible for the physical interchange between herself and the victim.
• She communicated a photograph of herself outside the premises apparently showing blood on her face but, there is no other information as to what else she may have conveyed other than that she and the victim's wife had been assaulted by the victim.
• The applicant said in his evidence that it took him 20 minutes to attend at the scene, although he told the psychologist it took 30 minutes.
• Having arrived at the scene, there was no further interchange with his mother, who his Honour said, "had walked off up the street". That was not correct in that she had returned to the driveway but that is of little consequence as his Honour went on to say that it was possible that he managed to speak with his mother when he attended the scene.
• During the time that it took him to travel to the premises, he called a friend or a group of friends and those three unidentified persons were able to attend at the scene almost immediately at the same time as the applicant.

1. The applicant says that the finding that the assault was unprovoked was erroneous and that the sentencing judge should have had regard to provocation as a mitigating circumstance.
2. The applicant identifies the following principles: "The general principles that have developed as to the applicability of provocation on sentence can be summarised as follows: a) provocation can reduce the objective criminality of an offence appreciably; b) the motive for offending must impinge upon an offender's moral culpability; c) the degree to which motive is relevant depends on the circumstances, the most significant of which is the nature of the offence; d) evidence of "relationship tension and general enmity … leading up to the offence" does not constitute mitigatory provocation; e) the proportionality of the offending conduct to the provocation is important if sufficiently disproportionate, it might not operate as a mitigating factor; and, f) where provocation is present, there cannot be realistic assessment of objective seriousness unless it is taken into account." (original emphasis, footnotes omitted.)
3. The applicant also submits that, whilst the statutory mitigating factor under s 21A(3)(c) of the Sentencing Procedure Act is limited to provocative behaviour from the victim, the common law recognises a mitigating factor of wider application being "provocative conduct" which the applicant submits might not necessarily come from the victim. The applicant submits that provocative conduct can have application in this broader sense, that is when the victim was not necessarily the source of the provocation.
4. The applicant also referred to cases where provocative conduct has been found to have formed the motive for aggravated break and enter offences, referring to the observations of Johnson J in Lovell v R; Dominey v R [2006] NSWCCA 222 ("Lovell") at [63].
5. The applicant referred specifically to three cases which the applicant submits are similar to the facts of this matter, being: 1. R v Price [2005] NSWCCA 285, in which the offender had heard of an assault upon his father and attended at the victim's premises the next day and beat him with a stick. 2. R v Millar [2005] NSWCCA 202, in which the offender was the father of the victim's partner who lived nearby. The offender often heard screaming coming from their house. After his daughter returned to live with him with a black eye, the offender attended at the victim's house and assaulted him. 3. R v Joel Tory; R v Luke Tory [2006] NSWCCA 18, in which the offenders had heard that the victim had inappropriately touched their sister, a 14‑year-old girl. They were angry and attended at the victim's house and assaulted him.
6. The applicant submits that in Lovell, Johnson J considered all three of these cases involved an element of provocation.
7. That may be so, but this is not a case in which the sentencing judge has overlooked a mitigating circumstance. His Honour has not failed to consider whether the attack was provoked. Rather, his Honour has made a finding of fact to the effect that the mitigating circumstance does not exist in the circumstances of this case. Indeed, his Honour made a specific finding that the attack was unprovoked.

Ground 2: Remorse

1. The applicant submits that the sentencing judge erred by qualifying his finding about remorse as a result of the applicant's failure to disclose the identity of his co-offenders.
2. As I have already mentioned, three other men turned up at the victim's home shortly after the applicant. Despite pleading guilty and generally cooperating with the Police, the applicant refused to disclose their identities.
3. The applicant gave evidence on the sentencing hearing and was questioned about this issue as follows: "Q: Do you recall being questioned at all by the police about identifying who the others were? A: Yes, I do. Q: What happened there? A: Well, this mess is because of me, I - I'm taking full responsibility for this and I am - HIS HONOUR: Sorry, that wasn't the question you were asked, you were asked, "Were you asked questions by the police as to who were the others that were there?" WITNESS: Yes, I was. HIS HONOUR: You were, and what did you tell them? WITNESS: I - I haven't disclosed. HIS HONOUR: You didn't disclose anything - WITNESS: Yeah. HIS HONOUR: -- about anyone that was there. WITNESS: About anyone that was there. HIS HONOUR: Right, and you relied on the lawyers advice not to make any statement in relation to - WITNESS: Yes, I did at the time, yes. ANGELOVSKI Q: Why haven't you disclosed who else was there, is there any other reason? A: Because it was - honestly, this - this is my mess and I'd be - I'm sorry for what's happened, if I could take it back, I would, David, I'm sorry for what's happened, I shouldn't have abused you no matter what happened prior, yeah, there's no - excuse for it. That's why I've gone as well because that's the thing, reacting like I did, it is out of character, so I have sought help as well, I have sought - because at the end of the day, I got a young son as well and I don't want this ever happening to him either or being in this situation."
4. The applicant was then asked further questions by the sentencing judge as follows: "Q. But you invited your friend there and he attended. And Mr Lloyd was significantly assaulted. What was the name of your friend? A. I apologise, your Honour. Like, I've - Q. So you're not going to tell us? A. No, your Honour. HIS HONOUR: I should say that's a question that is very relevant to the issue of remorse and contrition."
5. In his remarks on sentence, the sentencing judge observed: "As I indicated during submissions, I do not accept the offender as having been truthful in his evidence, and I make a similar observation in relation to the offender's partner, who claimed that she knew almost nothing about it, other than that the offender had attended and assaulted the victim, until such time as she read the facts, and that at no time did the offender tell her anything more than that he had assaulted the victim, and that she had never asked or been told who were the other persons who attended or, for that matter, anything which might have disclosed how the significant injuries were inflicted on the victim. I similarly do not accept his partner's evidence as having been truthful, although I acknowledge that it is highly likely that the offender would not have wished to provide details as to what he had actually done and, indeed, has continued to protect himself in that fashion by ensuring that there was no other alternative version as to what happened, by not identifying any of the three persons who attended with him, who might well have given a different version and indicated who in fact did what. And despite my reluctance in relation to accepting of any of the offender's evidence, I will accept that the offender is genuinely remorseful for what he did, even though in my view he has not been honest about it."
6. Integral to the complaint under Ground 2 are the propositions that on a review of the evidence and the remarks on sentence: 1. The sentencing judge considered that the applicant's failure to identify his co-offenders was relevant to an assessment of his remorse and contrition; and 2. The sentencing judge qualified the assessment of the applicant's level of remorse as a result of the refusal of the applicant to reveal the identities of the other three men.
7. The applicant submits that the sentencing judge erroneously treated the failure to identify those other persons as being a factor which adversely affected the assessment of remorse.
8. In Pham v R [2010] NSWCCA 208, Simpson J observed (at [27]): "I do accept that it was erroneous to treat the applicant's reluctance to identify his co-offenders as relevant to, and indicative of the absence of, remorse and contrition. As was pointed out on his behalf, there are good and well-known reasons why participants in drug offences might display that reluctance: see R v Baleisuva [2004] NSWCCA 344."
9. Whilst I adopt her Honour's observations, I do not accept the premise of Ground 2. That is, I do not accept that the sentencing judge qualified his findings on remorse having regard to the refusal of the applicant to identify those other three men.
10. The applicant's contention relies on an exchange during cross-examination of the applicant between the applicant and his Honour to which I have already referred, as well as the remarks on sentence.
11. However, this Court would not generally have regard to comments made by the sentencing judge during the sentencing hearing in preference to findings which form part of the sentencing judgment.
12. In You, Jae Bok v R [2020] NSWCCA 71 ("You"), I observed (at [78]): "… (3) exchanges between Counsel and the sentencing judge during the proceedings on sentence would not generally provide a basis for establishing error. Comments made by a sentencing judge during submissions might not necessarily reflect the sentencing judge's final thinking on sentence. In R v Van Hong Pham [2005] NSWCCA 94 at [11], the Court said: "This is not expressly stated in the exceedingly succinct reasons for sentence, and normally this Court will not find an error of principle from interchanges between the bench and counsel that indicate an apparent incorrect appreciation of the law, since those views do not necessarily reflect a considered decision: R v Kain [2004] NSWCCA 143 at [56] and R v A [2004] NSWCCA 292 at [12]." (4) it may be that in some circumstances exchanges during submissions may assist in understanding the sentencing judgment: Hughes v The Queen [2008] NSWCCA 48; 185 A Crim R 155. However, the applicant seeks to use the exchange to explain the sentence and establish error rather than to assist in the understanding of any particular statements made in the sentencing judgment." (citations added.)
13. In a similar vein, I would not consider that a comment made by the sentencing judge during the oral evidence of the offender during sentence proceedings would provide a basis for establishing error in the sentencing judgment or inferring that the sentencing judge has made a finding that is not otherwise supported by the remarks on sentence.
14. Further, whilst the sentencing judge may not have accepted the applicant as having been truthful in his evidence and made specific reference to his refusal to identify any of the three persons who attended with him, he ultimately found, "…despite my reluctance in relation to accepting any of the offender's evidence, I will accept that the offender is genuinely remorseful for what he did, even though in my view he has not been honest about it".
15. This can only be construed as a finding by the sentencing judge that the applicant was genuinely remorseful. It is not a finding that the weight which his Honour would give to remorse should be reduced because he had failed to disclose the identity of the other persons.
16. The applicant acknowledges that the sentencing judge did not make any explicit finding qualifying the finding of genuine remorse. That is so.
17. Further, on my review of the remarks on sentence as a whole, nor does any implication arise that his Honour must have intended to do so or did so.
18. The applicant accepted during oral argument on appeal that Ground 2 is dependent on this Court accepting that the sentencing judge did qualify his finding on remorse, that is the express finding that the applicant was genuinely remorseful should be treated as a qualified finding.
19. In circumstances in which there is no statement by the sentencing judge that he was qualifying the finding of remorse or giving less weight to remorse because the applicant refused to identify the three persons, I do not consider that the finding was qualified.
20. In these circumstances, there is no merit in Ground 2.

Ground 3: Double counting aggravating circumstances

1. The offence to which the applicant entered a plea was an aggravated offence contrary to s 112(2) of the Crimes Act, that is that he, in company with other unknown persons, did break and enter the house of the victim and did commit a serious indictable offence, namely assault occasioning actual bodily harm. The pleaded circumstance of aggravation under s 105A of the Crimes Act was that he was in company with other persons.
2. The applicant asserts that the sentencing judge erred by also taking into account, and thus double counting, further circumstances of aggravation being that the applicant used corporal violence on the victim and that the applicant intentionally inflicted actual bodily harm, both of which are listed as circumstances of aggravation in the definition section (s 105A) applicable to the offence to which the applicant entered a plea (s 112(2)).
3. In support of Ground 3, the applicant relies on the following passage in the remarks on sentence: "This was a brutal and savage assault carried out by the offender and/or those whose assistance he had enlisted. Objectively, it is a very serious example of such an offence. The injuries inflicted on the victim must be regarded as being at the highest end of the range constituting actual bodily harm, prior to any injuries escalating to the next level of seriousness, which would be grievous bodily harm. In addition to the relevant circumstances of aggravation provided by s 105A, s 21A(3)(e)(b) applies, that is, the offence was committed in the home of the victim."
4. Prior to those observations, his Honour identified a number of aggravating circumstances which may be relevant to the charge as follows: "The aggravating circumstance pleaded by the charge is one of being in company with the other three persons who attended but are unidentified. However, there are a number of circumstances of aggravation provided by s 105A(1) which are also relevant. They are that the offender was armed with an offensive weapon or instrument, being a hammer, and he was in the company of another three persons, although the victim only observed the offender and one other. The one other offender observed by the victim was also in possession of an offensive weapon or instrument, being a length of metal. Corporal violence was used on the victim and actual bodily harm was intentionally inflicted. The offender was aware that there was a person in the place where the offence was committed. Each of those circumstances of aggravation as provided by s 105A applies in this matter, even though only the circumstance of being in company is referred to in the charge."
5. As is evident from his Honour's comments, his Honour was paying regard to the list of aggravating circumstances set out in the definition section of the Crimes Act, Div 4, s 105A. His Honour considered that the circumstances of aggravation for the purposes of the offence under s 112(2) of the Crimes Act would include more than the pleaded circumstance (being in company).
6. A sentencing judge may take account of circumstances of aggravation relevant to an aggravated offence in addition to the particularised circumstance of aggravation: Marshall v R [2007] NSWCCA 24 at [10] (Howie J). It is not an error to go beyond the particularised circumstance of aggravation.
7. However, the real question which arises under Ground 3 is whether the sentencing judge erred in double counting for the purposes of the exercise of the sentencing discretion.
8. There is no doubt as to the principle identified by the applicant, being that in circumstances in which the charged offence necessarily involves circumstances of aggravation, it would be a form of double counting to also have regard to those circumstances as aggravating circumstances: R v Johnson [2005] NSWCCA 186 at [22] (Hunt AJA).
9. However, I do not agree with the interpretation of the remarks on sentence for which the applicant contends. It is important to observe that remarks on sentence should not be viewed too critically. Particularly in the District Court, remarks on sentence are often given immediately following a sentencing hearing, in a busy list and without the benefit of a transcript.
10. The duty of the sentencing judge is to sentence in accordance with the law and properly apply sentencing principles. Remarks on sentence must be construed in context, particularly in the context of the sentencing judgment as a whole.
11. Further, as I said earlier with reference to You, even though exchanges with counsel would rarely be considered as a means of establishing error, in some circumstances, exchanges with counsel may be used to understand the judgment.
12. During oral submissions the very issue of which the applicant complains was raised by the sentencing judge as follows: "HIS HONOUR: I'm sorry, there is one matter that I should raise with Mr Angelovski. In your submissions, you accept that the aggravating statutory matters under s 21A, the three are that the offence involved actual use of violence and was committed in company, and was committed in the home of the victim. ANGELOVSKI: Yes, your Honour. HIS HONOUR: That it was in company is already taken into account by the nature of the charge, it being an offence to commit a serious indictable offence of assault occasioning actual bodily harm in company, so the statutory factor adds nothing. That would be, in effect, double counting. However, s 112(2) is an aggravated offence, to which the circumstances of aggravation are set out in the definitions provided by s 105A, and that includes, that the offender is armed with an offensive weapon or instrument, in company, which is what the Crown has relied on. He used corporal violence. He intentionally inflicts actual bodily harm, knows that there are persons in the place where the offence is alleged to have [been] committed, so, of the six circumstances of aggravation, there is only one that doesn't apply in this matter, and in part, some are taken into account by the nature of the charge, but it is - do you wish to make any submissions in relation to any of those matters that I've just raised? ANGELOVSKI: No, your Honour. I've heard your Honour, and I can concede that, your Honour."
13. The applicant submits that the observations of the sentencing judge in respect of the circumstances of aggravation set out in s 105A of the Crimes Act reflect a form of double counting.
14. However, when reviewing the remarks on sentence in context and as a whole, a different construction emerges. His Honour was well aware of the need not to double count and well aware of s 21A(2) of the Sentencing Procedure Act.
15. His Honour was merely identifying that there were a number of circumstances of aggravation provided by s 105A of the Crimes Act which applied, even though only one was referred to in the charge. Indeed, this is precisely what his Honour said. The subsequent reference to the circumstances of aggravation provided by s 105A is thus a reference back to that earlier paragraph in the remarks on sentence.
16. Further, his Honour's use of the term "the relevant circumstances of aggravation provided by s 105(A)" is significant. In my view, his Honour was seeking to distinguish between circumstances of aggravation relevant to the actual offence, that is, those provided by s 105A of the Crimes Act and aggravating circumstances which must be taken into account for the purposes of sentencing under s 21A(2) of the Sentencing Procedure Act.
17. Ground 3 turns on acceptance of the proposition that his Honour erred in double counting. His Honour was alive to the idea that he should not double count. Indeed, he raised this with Counsel for the applicant on the sentencing hearing in response to submissions made by the applicant that might have led to a form of double counting.
18. Just like Ground 2, Ground 3 turns on acceptance of the particular construction of the remarks on sentence contended for by the applicant. As I do not accept the construction contended for, then Ground 3 also fails. It has not been established that his Honour engaged in any double counting.

Ground 4: Judicial intervention during the sentencing hearing

1. The essential point raised by Ground 4 is that there has been a miscarriage of justice caused by the sentencing judge's interventions during the oral evidence during the sentencing hearing. The applicant submits that the interventions were of such frequency and content that the applicant was denied procedural fairness.
2. In Ellis v R [2015] NSWCCA 262 ("Ellis"), the Court identified that the question must always be whether the intervention was unjustifiable and resulted in a miscarriage of justice. The Court identified the risk that a judge may be unable to properly assess the demeanour of a witness if the judge assumes the role of an advocate.
3. Further, the Court accepted that excessive judicial intervention and enquiry could lead to a reasonable apprehension of bias.
4. In R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3, Kourakis CJ suggested that a judge's intervention might vitiate a conviction in circumstances in which (at [38]): "… (i) the questioning unfairly undermines the proper presentation of a party's case (the disruption ground); (ii) the questioning gives an appearance of bias (the bias ground); and (iii) the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground)."
5. In this case, we are dealing with interventions by a judge during a sentencing hearing, not interventions during a jury trial.
6. The applicant submits that the circumstances of the sentencing judge's interventions were similar to R v Capaldo [2015] SASCFC 56, that is, the sentencing judge cross-examined the applicant such that there might be an apprehension of bias.
7. The applicant submits further that the sentencing judge "meaningfully interrupted the applicant's evidence-in-chief at least five times". It is also said that the sentencing judge "immediately interrupted the applicant's cross-examination on four occasions", suggesting that most of those interruptions comprised the judge's own cross-examination.
8. The Crown submits that it was permissible for the sentencing judge to question the applicant whilst he was giving evidence on the sentencing hearing, both because it was clear from some of the questioning that his Honour did not hear or understand some of the answers given by the applicant and, secondly because having regard to the evidence given by the applicant, there would have been some uncertainty or confusion as to whether the facts were agreed or whether the evidence was intended to dispute facts which were said to be agreed.
9. It is not necessary that I set out in this judgment every question or statement made by the sentencing judge during either examination-in-chief or cross-examination. Having reviewed the exchanges, it seems to me that the so-called interventions might fall into three broad categories.
10. Firstly, it is clear that at least some of these so-called interventions happened because the sentencing judge was seeking to either understand what the applicant had just said or seeking to understand the point by means of a direct and open-ended question.
11. None of these types of questions from the sentencing judge could be said to give rise to any unfairness or could be said to be a departure from the proper role of the judge. It is important to emphasise that evidence was being adduced on sentence and the sentencing judge was required to make findings on sentence for the purposes of the exercise of the sentencing discretion. This is a far different position from the process arising in a jury trial. It is the sentencing judge who is required to make findings of fact. The sentencing judge must only make findings adverse to the offender if satisfied of those facts beyond a reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
12. The sentencing judge is permitted to ask questions for the purposes of ensuring a proper understanding of the evidence of the offender and even to ensure that the witness answers questions asked of him by Counsel in a direct manner. At least in respect of a number of the interventions, this is what the sentencing judge was doing.
13. The second category relates to the applicant's decision not to reveal the identity of those persons who attended at the victim's home with him after he was contacted by his mother. There are a number of examples of his Honour's questioning on this issue, which include: "HIS HONOUR: Sorry, that wasn't the question you were asked, you were asked, "Were you asked questions by the police as to who were the others that were there?" WITNESS: Yes, I was. HIS HONOUR: You were, and what did you tell them? WITNESS: I - I haven't disclosed. HIS HONOUR: You didn't disclose anything - WITNESS: Yeah. HIS HONOUR: -- about anyone that was there. WITNESS: About anyone that was there. HIS HONOUR: Right, and you relied on the lawyers advice not to make any statement in relation to - WITNESS: Yes, I did at the time, yes." Then: "Q. So he wasn't attending to pick up your mother, was he? A. No, no, not - not to pick up my mum. No, no. To make sure everything was okay, like, when we got down there. Q. So he was for your protection or your mum's protection, was he? A. Yes. Because - because my mother was already abused. I never met him before." Then: "Q. But you invited your friend there and he attended. And Mr Lloyd was significantly assaulted. What was the name of your friend? A. I apologise, your Honour. Like, I've - Q. So you're not going to tell us? A. No, your Honour. HIS HONOUR: I should say that's a question that is very relevant to the issue of remorse and contrition."
14. It may be inferred from the statements and questioning that his Honour had a dim view of the applicant's refusal to reveal the identity of those persons that he asked to attend with him at the time. On a fair reading of some of the questions, it may be that his Honour was somewhat cynical or somewhat disbelieving of the applicant's evidence on this issue.
15. Indeed, his Honour did not accept that the applicant gave truthful evidence. That was a matter for his Honour. Perhaps his Honour was intending to express the doubt about the applicant's evidence that he ultimately expressed in the remarks on sentence.
16. It does not seem to me that, in being required to answer these small number of questions posed by the sentencing judge, the applicant has been denied procedural fairness. Further, a fair-minded observer would not have reasonably apprehended that the sentencing judge might not be bringing an impartial or unprejudiced mind to his tasks.
17. As I have already indicated, when considering Ground 2 (and whilst I acknowledge that the question I am considering on Ground 4 is different), the sentencing judge made a finding of remorse not qualified by any finding about the applicant's refusal to reveal the identity of those other persons who attended.
18. I do not accept that his Honour's questioning on this topic has resulted in a miscarriage of justice.
19. The third category of so-called interventions could be viewed as more significant. For example, his Honour appeared to be challenging the applicant in the following exchange: "HIS HONOUR: You justify what you did on the basis that he committed some wrong against - WITNESS: No, there's no justifying it. HIS HONOUR: --your mother, do you? WITNESS: No, there's no justifying that at all. HIS HONOUR: Well, that's what that comment means. WITNESS: Sorry, your Honour, I don't mean it like that."
20. Further, later in cross-examination, the following exchange ensued: "HIS HONOUR Q. Did you ask her what had happened? A Yeah. And she - she goes, "He bashed me, son." And I went over to my work ute and grabbed the hammed and - and ran up the stairs. Q. So why did you go and grab the hammer? A. To try to get inside. I - I - I was trying to get inside. Q. Why would you need the hammer to get inside? A. Because - Q. Could have just knocked on the door, couldn't you? A. I - I just reacted at the time. I know I shouldn't have done that. I was wrong. Q. You took the hammer as a weapon, didn't you? A. I didn't take the hammer as a weapon. I took the hammer to get inside to confront him because I thought he wouldn't open the door. I wasn't sure - Q. What was the name of your friend? A. I'm sorry, your Honour. But, like, it's my mess and I'm trying to - Q. It's your mess. A. Yep."
21. The sentencing judge appears to have been challenging the applicant on his evidence as to why he took the hammer before once again going back to the applicant's refusal to identify those other persons who attended.
22. It is arguable that the questioning of the applicant by the sentencing judge in this way crossed the line between seeking to clarify and understand the evidence and directly challenging the witness.
23. The question is whether the questioning by the sentencing judge gave rise to any unfairness to the applicant and whether there was a miscarriage of justice.
24. The applicant submits that the interventions by the sentencing judge taken as a whole resulted in procedural unfairness and a miscarriage of justice in that: 1. They prevented the applicant from properly presenting his case; 2. They prevented the judge from properly assessing the demeanour of the witness; and 3. Otherwise exhibited conduct that might give rise to a reasonable apprehension of bias.
25. In considering such a ground of appeal it is necessary to evaluate the proceedings on sentence as a whole, including all of the oral testimony of the applicant.
26. I do not accept that the questioning by the sentencing judge of the type to which I have just referred visited procedural unfairness on the applicant because he was in some way prevented from properly presenting his case in a sense that the evidence was disrupted or the applicant was not able to give the evidence as he wished to.
27. On my reading of the transcript, the applicant was able to respond to his Honour's questioning as he wished to, specifically explaining that he was not seeking to justify his conduct and denying that he took the hammer as a weapon. He said he took the hammer to get inside to confront the victim because he thought he would not open the door.
28. His Honour rejected the applicant's evidence as untruthful, as he was entitled to do. For example, the suggestion that he took the hammer not as a weapon, but to get inside the door, seems incredulous, particularly when considered in light of the fact that standing next to him at the time of was a person who he had invited to come along and was also holding a piece of metal as a weapon.
29. As submitted by the applicant, the test for apprehended bias was described in Tarrant v R [2018] NSWCCA 21 (at [9]) as follows: "There was no issue in this Court that, where actual bias is not alleged, the legal test, as expressed in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, requires the court to be satisfied that "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." The High Court has reaffirmed the salience of the test on subsequent occasions, including in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48. The so-called "double might" test is by no means easy to apply: its application requires attention to four discrete elements. (1) First, there is the postulate of the "fair-minded lay observer". Use of that expression reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not, as explained in Johnson v Johnson, "the assessment by some judges of the capacity or performance of their colleagues." (2) Secondly, the test has been described as "objective", by which is meant a third party's assessment of the judge's conduct and capacity, and not, as with actual bias, an assessment of the judge's own state of mind. (3) Thirdly, there is said to be a two-stage process required; it is necessary to articulate "the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making." (4) Fourthly, use of the term "might" lowers the burden of proof below that of probabilities. Thus the court need not be satisfied that the fair-minded lay observer "would" have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities."(citations added, footnotes omitted.)
30. The suggestion of apprehended bias in this matter arises not in the context of statements made by the sentencing judge during exchanges with Counsel prior to the hearing of any evidence or even exchanges made during oral submissions. It was the questioning of the applicant by his Honour that gives rise to the submission. Yet, on a fair reading of all of the examination-in-chief and cross-examination of the applicant, it is clear that his Honour's questions were a direct response to the other answers given by the applicant in his evidence.
31. In my view, the applicant has not established that which is necessary for a finding of apprehended bias, having regard to the circumstances in which the questioning arose.
32. The sentencing judge was required to assess the applicant's evidence. As juries are instructed, that necessarily involves an assessment of what the applicant was saying as well as his demeanour and the way in which he was saying it. The fact that after hearing most of the evidence the sentencing judge asked the questions of the applicant as if to challenge him does not lead to the conclusion that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question his Honour was required to decide. This is because his Honour was responding to the evidence actually given by the applicant at the very moment it was given and having regard to the precise statements made by the applicant.
33. His Honour did not embark on his questioning of the applicant in a vacuum. He was responding to the applicant's statements. Questions such as "Why would you need a hammer to get inside?" or "Could have just knocked on the door couldn't you?" tend to suggest some incredulity on the part of his Honour, but they do not of themselves give rise to a finding of apprehended bias.
34. In H T v The Queen [2019] HCA 40; (2019) 278 A Crim R 133 per Kiefel CJ, Bell and Keane JJ, the Court observed (at [18]): "Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise."
35. It is necessary for the applicant to establish that the complaint of judicial intervention leads to procedural unfairness resulting from a practical injustice.
36. In my view, the alleged injustice is more theoretical than practical. On my review of the transcript, the applicant was not prevented on any occasion from giving the evidence that he wanted to give. Further, he was given the opportunity to answer his Honour's questions as he wished to answer them and he did so. His Honour was entitled to reject his evidence as untruthful.
37. The interventions fall broadly within the observations of this Court (per Wilson J) in Pleasance v R [2016] NSWCCA 113 ("Pleasance") (at [83]-[89]): "It is not the law that a sentencing judge is not entitled to ask questions of an offender who gives evidence, or question some aspect of the case presented by an offender. Such questioning will only become unreasonable where there is unfairness to the offender. Determining whether that point has been reached requires an evaluation of the whole of the circumstances of the case, and the nature and extent of any questioning. Although the applicant complains that his Honour raised with the parties the issue of the applicant's evidence and what he was to take from it, relying upon this aspect of the matter as an indication of the extent to which the sentencing judge had descended into the arena, his Honour was, in fact, obliged to raise it. In giving her evidence as she did, the applicant appeared to traverse aspects of the agreed facts. Since the sentencing judge was obliged to find the facts of the crime, it was appropriate to raise with the parties the perceived inconsistencies between the applicant's evidence and other evidentiary material, including agreed facts: R v Falls [2004] NSWCCA 335 at [37]; Zammit v R [2010] NSWCCA 29 at [26] - [27]. Importantly, in the present case the sentencing judge sought clarification of matters over which the applicant's evidence had drawn a cloud of uncertainty and, having done so, squarely raised his concerns for the consideration of the parties. His Honour invited further evidence and, ultimately, submissions on the point. There can be no unfairness where the applicant was given every opportunity to clarify her evidence (in chief, cross-examination, re-examination, and further evidence in chief with leave), and invited to address the sentencing court about her evidence and what should be drawn from it. This matter is readily distinguished from that pertaining in Ellis v R, where the applicant was not able to complete his evidence, and compelled to withdraw the evidence that he had given before the sentencing judge intervened. The questions asked by the sentencing judge of the applicant about her assertions as to the circumstances surrounding the commission of one of the offences taken into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, were also clearly intended to clarify what appeared to be evidence that undermined her earlier acknowledgement of her guilt of that offence. Such questioning was also open to his Honour."
38. Her Honour's observations in Pleasance are particularly apposite to the circumstances in this matter. There is no unfairness where the applicant was given every opportunity to clarify his evidence and given an opportunity to make submissions thereafter. Like in Pleasance, this matter may be distinguished from Ellis. The applicant was not prevented from completing his evidence or forced to withdraw evidence. Indeed, as I have found, he was quite able to respond to any propositions put by his Honour.
39. Further, I accept the Crown's submission that these interventions did not lead to any adverse findings against the applicant. His Honour did not accept the applicant as being truthful but there can be no suggestion that this resulted from any particular questioning of his Honour. For example, his Honour's questioning about the bringing of the hammer did not lead to his Honour finding that the applicant used the hammer to injure the victim at any particular time. Indeed, his Honour expressly disavowed such a finding. Further, as I have already indicated, his Honour accepted that the applicant was genuinely remorseful, despite finding that the applicant was not a truthful witness.
40. Whilst the sentencing judge may have directly challenged the applicant in a small number of questions, on a fair reading of all of the evidence, I am not satisfied that the applicant has established any lack of procedural fairness as a result thereof.
41. In the circumstances, Ground 4 also fails.

Conclusion

1. The applicant fails on each of his grounds of appeal and, in the circumstances, the orders I would propose are: 1. Leave to appeal is granted. 2. The appeal is dismissed.

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