Fuller v R

Court of Criminal Appeal (NSW)|2024-06-05|Before: Mitchelmore JA, Sweeney J, Huggett J

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Nathan Fuller, entered a plea of guilty to the charge of enter dwelling-house with intent to steal, contrary to s 111(1) of the Crimes Act 1900 (NSW), with a charge of larceny (s 117) and a charge of steal motor vehicle (s 154F) contained on a Form 1. On 6 November 2023, the applicant was sentenced to a term of imprisonment of 4 years, with a non-parole period of 3 years. The applicant's offending involved a single victim. On 29 October 2022, the applicant, his co-accused and a third person travelled by car to a hotel in Macquarie Park, where the co-accused had arranged to meet the victim. The co-accused told the applicant and the third person what room she was in with the victim, and the applicant attended the room and knocked on the door. When the victim opened the door, the applicant attempted to push past the victim, whereupon the victim fled. The applicant and the co-accused removed $500 cash from the room and the applicant picked up the key to the victim's Mercedes. The applicant and the co-accused exited the hotel. The co-accused left the area in the vehicle driven by the third person, and the applicant left in the victim's vehicle. The applicant gave evidence during the proceedings on sentence, in which he gave evidence of his remorse about the impact of his offending on the victim which the Crown did not challenge. The sentencing judge asked him about the whereabouts of the Mercedes, to which he replied that he did not know where the car was. The sentencing judge asked the Crown whether the applicant was offered an opportunity to enter into a record of interview and whether or not he made admissions or any disclosure. Counsel for the Crown confirmed that the applicant participated in an electronically recorded interview with police (ERISP), and that the parties were in agreement that the applicant "made quite frank admissions to involvement with the offending conduct on the day". Towards the conclusion of the hearing, the Crown tendered an electronic copy of the transcript of the ERISP and did not seek to make any further submissions that suggested any change of position. In sentencing the applicant, the sentencing judge was critical of the applicant's responses in the ERISP, and found that his expressions of remorse were not genuine, including because he had not made clear admissions, without obfuscation or prevarication. The applicant sought leave to appeal the sentence on the following grounds: (1) In rejecting the applicant's evidence of remorse and contrition as genuine, the sentencing judge erred by: (a) failing to take into account the agreement between the parties that the applicant made "quite frank admissions" during the ERISP, and failing to provide the applicant with an opportunity to address the adverse findings his Honour made about the ERISP; (b) failing to take into account the applicant's plea of guilty in considering the extent of remorse and contrition; and (c) failing to take into account the applicant's unchallenged evidence of remorse and contrition, and failing to provide the applicant with an opportunity to address his Honour's rejection of that evidence. (2) The sentence was otherwise manifestly excessive. The Court (Mitchelmore JA, Sweeney J and Huggett J agreeing), granting leave to appeal and allowing the appeal, held: As to Ground 1(a): (1) The sentencing judge rejected that the applicant's evidence of remorse was genuine on the basis of a view of his responses in the ERISP that did not accord with the basis on which the Crown and the applicant had proceeded. In circumstances where the parties had proceeded on the basis that the applicant had admitted to his own offending conduct in the ERISP, and the Crown not only did not seek to make anything of the manner in which he made those admissions and was prepared to accept them as frank, the use that his Honour made of the ERISP involved a denial of procedural fairness: at [46]. Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074; DL v The Queen (2018) 265 CLR 215; [2018] HCA 32; Smith v R [2024] NSWCCA 59 applied. As to Ground 1(b): (2) The sentencing judge giving the applicant's guilty plea less weight as evidence of contrition did not constitute an error in the circumstances of the present case: at [38], [40]. Hoskins v R [2020] NSWCCA 18 considered. As to Ground 1(c): (3) A sentencing judge is not required to accept evidence of remorse, even where an offender has given evidence on oath. It is for an offender to establish remorse on the balance of probabilities. His Honour did not deny the applicant procedural fairness with respect to his finding on remorse alone: at [47]. Mihelic v R [2019] NSWCCA 2; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54; Newman v R [2018] NSWCCA 208 considered. As to Ground 2: (4) Neither party submitted that if the Court upheld Ground 1(a) the matter should be remitted. Accordingly, it is not necessary to deal with the manifest excess ground as it is necessary to move to resentence in any event: at [48]. Crane v R [2024] NSWCCA 87; Whipp v R [2024] NSWCCA 79 cited.

JUDGMENT

MITCHELMORE JA: The applicant, Nathan Fuller, seeks leave to appeal from the sentence imposed upon him on 6 November 2023 by Judge King SC in the District Court, on the charge of enter dwelling-house with intent to steal, contrary to s 111(1) of the Crimes Act 1900 (NSW). Two further offences were contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW): larceny contrary to s 117 of the Crimes Act; and steal motor vehicle contrary to s 154F of the Crimes Act. His Honour sentenced the applicant to a term of imprisonment of 4 years, commencing on 29 October 2022 and expiring on 28 October 2026, with a non-parole period of 3 years.
The applicant seeks leave to appeal on the following grounds: 1. In rejecting the applicant's remorse and contrition as genuine, the sentencing judge erred in the following respects: 1. His Honour failed to take into account, properly or at all, an agreement between the parties that the applicant made "quite frank" admissions during an electronically recorded interview with police (ERISP), and his Honour did not provide the applicant with an opportunity to address the adverse findings his Honour made about the ERISP. 2. His Honour failed to take into account, properly or at all, the applicant's plea of guilty in considering the extent of his remorse and contrition. 3. His Honour failed to take into account, properly or at all, the applicant's unchallenged evidence of remorse and contrition; and his Honour did not provide the applicant with an opportunity to address his Honour's rejection of that evidence. 1. The sentence is otherwise manifestly excessive.
As Basten AJA observed in Smith v R [2024] NSWCCA 59 ("Smith") at [16], an arguable case that there has been a failure to accord procedural fairness is sufficient to warrant a grant of leave to appeal. That standard is met in the present case. I would grant leave to appeal. For the reasons set out below, I would also uphold ground (1)(a) and set aside the sentence. As neither party submitted that the Court was not as well placed as the District Court to undertake the resentencing exercise, I have undertaken that function. Contrary to the Crown's submissions, I have determined that a lesser sentence is warranted in all the circumstances of the case.

The agreed facts on sentence

The applicant's offending involved a single victim. In July 2022, the victim became known to the applicant's co-accused, Aylicia Baroutis, through a dating website called "Sugar Daddy Meet". The co-accused and the victim had met on a number of occasions.
On 29 October 2022, around 12.30pm, the co-accused arranged by text message to meet the victim at the Mercure Hotel located in Macquarie Park (the Hotel). The co-accused then sent a screenshot of the messages to the profile "Jayden Leslie" via Facebook Messenger, stating "Let's go this one".
At 2.30pm, the victim arrived at the arranged location in his own car, a Mercedes, which he parked on Talavera Road outside the Hotel. The victim had $2,000-$2,500 inside his vehicle. After checking into the Hotel, he proceeded to room 311, which is located on the third level. He placed five $100 notes in a drawer underneath the television, which he intended to use as payment for the co-accused's time.
At 2.42pm, a white Subaru Impreza conveying the applicant, the co-accused and an unknown male driver, was captured on CCTV heading in the direction of the Hotel. At 2.44pm, the co-accused exited the vehicle and entered the foyer of the Hotel. CCTV captured her using her phone. The co-accused sent a text message to "Jayden Leslie" on Facebook which stated: "Going up the lift now. Tell him go in turn left and the lift on the left then press number 3. Room 311. Tell him come now." The response was, "His coming."
At approximately 2.46pm, the applicant was captured on CCTV walking towards the Hotel. The applicant entered the Hotel, went to the lift and made his way to the hotel room as the co-accused had advised. The agreed facts continued: "Sequence 4 - Enter dwelling with intent to commit SIO, s111(1) Crimes Act Form 1 - Larceny, s117 Crimes Act 13. The offender knocked on the door to room 311, knowing that the co-accused was with the victim inside the hotel room. The victim opened the door and was confronted by the offender who then attempted to push past the victim. Fearing for his safety, the victim ran past the accused up the hallway and shouted out, 'I will call reception' as he headed towards the lobby to locate hotel staff. 14. The offender then entered the hotel room, and the offender and the co-accused removed the $500 cash from the drawer (Larceny, Form 1 offence). The offender picked up the keys for the victim's vehicle, and the offender and co-accused then left the hotel room and exited the building via the fire escape stairs. 15. At 2:51pm, the offender and co-accused were captured on CCTV exiting the Mercure Hotel via the fire stairs towards ground level, where they met up with the driver of the white Subaru parked in the driveway of the complex. The offender and co-accused entered the white Subaru vehicle."
At 2.53pm, the applicant exited the white Subaru on Talavera Road and approached the victim's Mercedes, using the stolen key to unlock and enter the vehicle. The applicant pulled out from the parking spot and drove in a westerly direction along Talavera Road, before turning the vehicle around and departing the location in an easterly direction.
At approximately 9.30pm, police attended the residence of the co-accused in Gladesville, as she and the applicant were getting into the rear seat of a rideshare vehicle. Police stopped that vehicle shortly thereafter and placed the applicant and the co-accused under arrest. Police seized a black Subaru key from the back seat of the vehicle where the applicant and the co-accused had been sitting.
At the conclusion of the agreed facts was a section titled "Post-arrest conduct (uncharged)". This section of the facts recorded extracts from three phone calls that the applicant had made from prison. The first call was on 3 November 2022 between the applicant and his mother, in which he discussed the offences with her. The applicant made admissions that he had knocked on the door of the room and the victim had opened it, and that he knew they were going to have him on camera, stating "It's an enter dwelling at worst". The applicant also admitted in that call that he had taken the key to the Mercedes.
The second call was on 5 November 2022 between the applicant and his mother, the latter of whom also connected the co-accused. In the course of that call, the co-accused said: "There's a man, he's pressing charges against you. Do we 'aypay' (pay) for him not to come 'ourtkay' (court), did you get that? So I tell him where the arkay (car) is because that's what he wants. That's what he wants because no insurance, listen, he has no insurance on his arkay (car), are you listening? And instead of paying the lawyers we can pay him not to come to ourtkay (court)."
The applicant said to the co-accused: "Tell him this one, tell him, are you in a position to tell him where (inaudible). Tell him we'll give him that plus 25K, tell him to withdraw all of it…"
The third phone call was also on 5 November 2022 and was another three way call between the applicant and his mother and another male described only as being known to police. In the course of that call, the male offered to "sort this out for ya (the offender)". On 6 November 2022, the victim received a phone call from a man speaking in a Middle Eastern accent who told him that he had the victim's car. The man told the victim that if the victim dropped the charges against "Nathan" (the applicant) he would tell the victim where the car was, and offered to pay him money in addition.

The proceedings on sentence

Given the first ground of appeal, it is necessary to outline the course of the hearing before the sentencing judge, which took place on 2 November 2023.
Before confirming that the applicant adhered to his plea, the sentencing judge raised with the Crown the section of the agreed facts dealing with the uncharged, post-arrest conduct. The Crown confirmed that it was relying on that section only for the admissions the applicant made, and to show the ongoing communication between the applicant and the co-accused.
After the applicant adhered to his plea, the sentencing judge raised two matters with the Crown. The first was whether the victim's car had been recovered or returned. The second was that the agreed facts did not address whether the applicant was offered an opportunity to enter into a record of interview and whether or not he made admissions or any disclosure about the other persons concerned. His Honour relevantly stated in this context: "Those are, in my view all very relevant matters, particularly as they go [to] issues such as remorse and contrition. Supplying information as to where the Mercedes is or can be obtained, or who the other offenders are, is highly relevant to both of those issues. An offender who steals a million dollars of jewellery and then comes along having never told anyone where it is, and then seeks to say that they are contrite and remorseful for their conduct, is pushing a very heavy barrow up a hill in my view, and this reeks of much the same problem. I'm going to go off the bench until such time as you and Ms Kluss [the applicant's counsel] contact my associate and tell her that the matter is ready to proceed."
When the matter came back before his Honour, the Crown addressed the matters his Honour had raised, stating: "I have made some inquiries with the officer-in-charge's station. He himself is on leave, but his colleague has assisted me to look at the file, and has told me that whilst he's reviewed the file, he cannot see a record that the vehicle has ever been recovered. Regarding the ERISP query raised, the offender did participate in an ERISP, where my friend and I, I believe, are in agreement that he made quite frank admissions to involvement with the offending conduct on the day."
The sentencing judge asked whether the ERISP had disclosed the location of the Mercedes or the other persons involved other than the co-accused, and the Crown confirmed that it did not. There was then the following exchange: "KLUSS: Involved, as I understand it, the identity of the people who he was with and his -- HIS HONOUR: That was Ms Baroutis? KLUSS: Yes. HIS HONOUR: Who was arrested with him. KLUSS: Yes. HIS HONOUR: I knew she was arrested. KLUSS: Well, but he also identified her in the course of the admissions, and also indicated his last involvement with the car, and the other co-accused had been involved in that. HIS HONOUR: Perhaps this is a matter in relation to which the record of interview should itself should have been produced. CALO [for the Crown]: Yes, that can still be produced if your Honour requires it. I do not have copies with me but that could certainly be provided if your Honour would be assisted by that. HIS HONOUR: Yes, I believe I would be, particularly if it involves him actually making disclosures. Particularly if they are disclosures that were not otherwise known to the investigating police. Obviously, his presence at the premises was known. He was recorded on CCTV footage wearing distinctive clothes going in and then going out and then going to another vehicle, or the vehicle driven by the third party perhaps. So yes, I think that would be appropriate. We can at least otherwise proceed with hearing of the sentence matter now, although if the record of interview is produced and you wish to make any further submissions, that can be done in writing."
The hearing proceeded. The Crown tendered material that included the agreed facts, the applicant's criminal record and custodial history, and a Sentencing Assessment Report dated 31 October 2023, in which the author wrote that, when prompted, "Mr Fuller appeared to recognise the seriousness of his offending behaviour and acknowledged the potential impact on the victim".
The applicant tendered a report of Dr Paul Pusey, dated 26 October 2023. Dr Pusey noted that the applicant acknowledged his guilt in relation to the charges before the court and that he had made a stupid decision, the ultimate motivation for which was to get money for his personal use and for drugs. Later in the report, Dr Pusey recorded: "Mr Fuller acknowledged that 'I used to experience of feelings of helplessness and hopelessness quite a bit, but now I'm trying to stay as positive as I can'. He additionally reported that he experiences feelings of guilt and remorse in relation to 'life and everything I've done. I hurt a lot of people and hurt myself. I haven't been a member of society and knowing this, eats at you. I sit in my cell and think about this all the time'."
Dr Pusey expressed the opinion that at the time of the events for which the applicant was before the court, he would likely have met the diagnosis for multiple mental health disorders according to the DSM5, specifically major depressive disorder and substance use disorder.
The applicant gave evidence, confirming that he had spoken with Dr Pusey and that he had told him the truth. He also stated that when speaking with the police in the course of the record of interview he had told them the truth. The applicant confirmed that he had received compensation from the Department of Juvenile Justice in the amount of about $50,000, and that he proposed to use those funds to obtain accommodation and build his life. He was asked about rehabilitation programs that he was prepared to undertake and also about an incident in custody when he was found with a syringe in his cell. The applicant gave evidence that his brother was prepared to offer him employment if he could demonstrate that he was reliable and not using drugs. The last question asked of him in examination in chief concerned his remorse for the victim: "Q. So far as the person from whom you stole, how do you feel about what you did and that victim? A. From my heart I just hope that he knows that it wasn't a personal attack on him, you know. I'm sorry to the bloke. I hope he can move forward you know. It's just a bad decision that I made, and I hope the bloke can forward with his life and it hasn't affected him too much, yeah."
The applicant was cross-examined about his drug use in custody. He admitted to smoking "a bit of pot", but said that he had been "clean" for the past eight months after being placed on a drug replacement program involving injections of buprenorphine. The Crown did not ask him any questions about what he told Dr Pusey, or what he said about the victim. The sentencing judge also questioned the applicant, first as to whether the applicant had asked his solicitors to contact the victim to establish what the theft of the motor vehicle had cost him (the applicant said he had not). His Honour also asked the applicant about the vehicle: "Q. What did you do with the car? A. To be honest, I'm not going to lie to the Court, my, like the other bloke took the car like that day. I didn't drive it away, like I, I didn't take it home, the other block (sic), and he took the car, yeah. Q. I thought on the agreed facts you drove it away? A. Yeah, yeah, I, I, I stole the key. I, I took the car around the corner and then a third offender, he took it, you know. Q. He was already driving a car. He couldn't drive two at once? A. Pardon? Yeah, no, I took the white car away, yeah. I took that car, yeah. Q. What was the name of that person? A. Jayden Leslie, yeah."
Towards the conclusion of the sentencing hearing, the Crown stated that she had an electronic copy of the transcript of the ERISP which she would email to his Honour's associate. The applicant's counsel, who had only recently come into the matter, stated that she had not read the ERISP and that she would like to review it. Counsel for the applicant then made brief submissions on the ERISP, directing his Honour's attention to where the applicant was asked about the location of the Mercedes and said he did not know where it was. His Honour also stated that he was "just quickly trying to read the record of interview just in case there are any questions". After confirming whether counsel wanted to add anything further orally to her written submissions, his Honour stated: "And you've made oral submissions otherwise, so really, it's a matter for me reading the record of interview in relation to which you may wish to make some further submission and you can do that in writing."
His Honour asked for anything further to be provided by the end of the following day (3 November 2023, which was a Friday) and adjourned the matter for sentence to 10am on Monday, 6 November 2023.

The sentence

After setting out the agreed facts, his Honour observed that he could not take the uncharged post-arrest conduct into account in sentencing the applicant. However, his Honour then stated that the conduct was relevant to remorse and contrition, finding that it did not "sit well with the offender acknowledging his guilt or having any particular remorse or contrition in respect of his offending, in that he sought to commit a further offence in order to avoid the result of his previous actions".
In relation to the victim's vehicle, his Honour noted that there was nothing in the facts suggesting that it was ever recovered or returned, or that the applicant provided any information to assist. His Honour referred to the evidence that the applicant gave on this issue, describing his claim to not know what happened to the Mercedes as "inconsistent with what is contained in the recorded prison calls, offering to return the vehicle" (I note that the applicant never stated in those calls that he knew the location of the vehicle, and his question of the co-accused suggested, consistently with his evidence, that he did not know its location).
His Honour also referred to the applicant's evidence about the compensation he had received from Juvenile Justice in the amount of $50,000 and emphasised that, despite those funds, he had not made any endeavour to have his legal representatives inquire about any compensation he might pay the victim for the loss of his Mercedes. His Honour considered this to be "an indication that the offender only thinks of himself, and has no empathy for his victim, no matter what the value of the Mercedes was".
In relation to the circumstances of the offending, the sentencing judge noted that the contact between the applicant and the victim was of relatively short duration and that there was no injury to the victim. His Honour described the offence as deliberately organised, with the applicant in league with the co-accused and a third person. His Honour stated: "In my view this is a serious offence, as are each of the offences on the Form 1, although, in my view, the theft of the motor vehicle, although it only carries a maximum of five years, is perhaps more significant than either of the other two offences. In the circumstances, a significant sentence must be imposed when one considers the personal circumstances of the offender."
Turning to those personal circumstances, his Honour referred to the applicant's age (37 years old) and his significant criminal history, which included convictions for driving offences, property offences, housebreaking offences, and violence offences including domestic violence offences. The applicant's record disentitled him to leniency and indicated that specific deterrence was very relevant. His Honour also noted that three days before the applicant committed the offences he had been placed on a 12-month community corrections order for offences of goods in custody, stalk/intimidate, intimidate police officer, and resist or hinder police. This was an aggravating feature of the current offending and demonstrated "contempt for the law".
His Honour referred to the report of Dr Pusey, the applicant's adoption of what he had told Dr Pusey, and Dr Pusey's ultimate opinion (to which I have referred in [22]). His Honour also referred to the ERISP and the applicant's confirmation that he had told the police the truth. His Honour stated: "As a result of that evidence, there was some discussion between the bench and the bar table about the record of interview, and an indication given by the Crown was that he had made in effect fulsome confessions on the record of interview. As a result, I requested to be provided with the record of interview. I have read the record of interview and there are a number of particular descriptors that come to mind having read it, that is, obfuscation, prevarication and dissembling. It demonstrated a rare inability to ever answer a question directly, and in general, to give a rambling non-answer, frequently punctuated, at times almost every second sentence, with the words 'Do you know what I mean?' There is rarely in the interview a direct confession or admission."
His Honour set out a number of extracts from the ERISP, including the applicant's responses to the effect that he did not know the current location of the Mercedes. His Honour again described his responses as "perhaps somewhat inconsistent with being able to determine its location for the purpose of returning it to get the victim to assist in perverting the course of justice". Having regard to his criminal history, and the opinion of Dr Pusey and the author of the Sentencing Assessment Report regarding the applicant's risk of re-offending (moderate-to-high and high, respectively), his Honour found that there was "a very poor prospect of any rehabilitation by this offender".
His Honour stated that the applicant was "said to have appeared to recognise the seriousness of his offending behaviour and acknowledged the potential impact on the victim". Shortly after this comment, his Honour stated: "Like many offenders who come before the Court after having repeatedly committed criminal offences and consequently going through the justice system, he is quite capable of mouthing what are effectively platitudes about his intentions for the future, such as that he would do the EQUIPS Foundation program, he would also do an alcohol and drug assessment, was prepared to go into a residential rehabilitation, and acknowledging that he needed assistance in those respects, and that of course he would not need to resort to crime because he was now about to rely on the $50,000 compensation he had received to pay for accommodation. As to remorse and contrition, he also said this, that he: '…experiences feelings of guilt and remorse in relation to life and everything I've done. I've hurt a lot of people and hurt myself. I haven't been a member of society and knowing this eats at you. I sit in my cell and think about this all the time.' That was something he said to Dr Pusey. That is perhaps some evidence of remorse and contrition, however I do not accept it as being genuine. I might have been prepared to accept something, if genuine, if it had been in circumstances where this offender when arrested had made clear admissions without obfuscation or prevarication, or first asking the police officers to disclose what they could prove and if he had entered a very early plea of guilty. But that is not the case here."
His Honour considered that the threshold in s 5 of the Crimes (Sentencing Procedure) Act had been passed and that a sentence of imprisonment was necessary. His Honour considered the appropriate sentence was one of 5 years and 4 months. Applying the full 25% discount for the applicant's early plea, the term of the sentence was 4 years with a non-parole period of 3 years.

Ground 1: denial of procedural fairness in dealing with remorse and contrition

The central focus of the applicant's submissions on ground 1 was that the sentencing judge denied him procedural fairness in terms of how his Honour dealt with the ERISP (ground 1(a)) and in rejecting his evidence of remorse and contrition as genuine (ground 1(c)). In relation to the ERISP, the applicant emphasised that there was an agreement between the Crown and his counsel that he had made quite frank admissions, and at no time did the Crown alter its position as to that agreement. In relation to his oral evidence of remorse and contrition and what he told Dr Pusey (the truth of which he adopted in his oral evidence), the applicant emphasised that although the Crown cross-examined him there was no challenge to the evidence he gave on that subject. In those circumstances, he submitted, the sentencing judge erred in not giving him an opportunity to address the adverse view his Honour took of the ERISP and his Honour's finding that his evidence of remorse and contrition was not genuine.
The applicant also submitted that the sentencing judge failed to take into account his guilty plea in considering the extent of his remorse and contrition (ground 1(b)). This submission received less attention than the procedural fairness complaints and may be dealt with briefly.

Ground 1(b): the applicant's plea

The applicant submitted, correctly, that a plea may provide evidence of remorse and contrition and taking it into account in that way does not involve any double counting: Hoskins v R [2020] NSWCCA 18 ("Hoskins") at [8]. The sentencing judge did not decline to consider the plea for that reason. Rather, his Honour appears to have given the plea less weight because it was not, in his words, a "very early plea", a descriptor that the applicant contended was clearly wrong.
There was no evidence before the Court as to the stage at which the applicant entered his plea. In the course of her oral submissions, Senior Counsel for the Crown submitted that the plea was entered on the date of the committal. In any event, the Crown submitted that reading the comment of the judge regarding the plea in context, his Honour was doing no more than pointing out that the present case was not one in which the timing of the plea, and the circumstances in which it was entered, pointed inexorably to the applicant having remorse.
I accept the Crown's submission. I have no reason to doubt the correctness of the submission regarding the date on which the plea was entered, and note that counsel for the applicant made no submission to the contrary in his reply. Even without that submission, however, his Honour's reference to the absence of a very early plea must be read in context. As the Crown submitted, his Honour was effectively distinguishing the present case from one, such as Hoskins, in which the applicant surrendered himself promptly to the police, made full admissions and entered an early plea, as well as tendering evidence of remorse that the sentencing judge accepted. That the sentencing judge was not prepared to give the applicant's guilty plea the same weight, as evidence of contrition, in the circumstances of the present did not constitute an error. I would dismiss ground 1(b).

Grounds 1(a) and 1(c): alleged denials of procedural fairness

The Full Court of the Federal Court explained the relevant aspect of procedural fairness in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; [1994] FCA 1074 ("Alphaone"): "[The] entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."
In relation to the manner in which the sentencing judge dealt with the ERISP, the applicant submitted that procedural fairness required that he be informed that his Honour was going to reach a view about the ERISP that departed from the agreement that the Crown stated had been reached, and be given an opportunity to be heard on that issue. The applicant relied in this respect on the decision of the High Court in DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 ("DL"), in which the Court stated at [39]: "… Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court. …" (Footnotes omitted.)
The Crown submitted that there was no procedural unfairness because the agreement on which the applicant relied was "not an agreement as to the facts" but rather "effectively a submission about the facts". The Crown relied on the fact that counsel for the applicant had not read the ERISP, and the sentencing judge's description of what the Crown said as "an indication" that the applicant "had made in effect fulsome confessions in the record of interview". I do not accept that characterisation of what the Crown said; but even if it were to be so characterised, the Crown's submission was favourable to the applicant, and after tendering the ERISP the Crown did not seek to make any further submissions that suggested any change of its position. The fact that the applicant's counsel had not read the ERISP did not relevantly impact on the position that the Crown had taken and implicitly maintained.
The Crown submitted, consistently with what the High Court said in DL, that the sentencing judge was not bound to accept any concession by the Crown or any agreement between the parties as to the significance of particular evidence. However, consistently with what the High Court went on to state in DL, the question is whether, given what the Crown had submitted about the ERISP, the sentencing judge needed to do more than what his Honour did to put the applicant on notice that he was proposing to depart from the agreed position and provide an opportunity to be heard in respect of it.
The Crown, relying on the remarks extracted in [17] above, submitted that the sentencing judge had made it clear to the parties during the hearing that remorse and contrition would not be given great weight in circumstances where an offender knew the location of stolen goods and refused to reveal that location. Although those remarks were made before the Crown made inquiries about the ERISP, what his Honour said at that point was relevant to the content of the opportunity that the applicant submitted should have been afforded to him. The issue his Honour raised in relation to the ERISP was that its content was relevant to his evaluation of expressions of remorse on the part of the applicant. Further, his Honour indicated that of particular relevance to that evaluation, for his part, was whether the applicant had disclosed to police the location of the Mercedes or the identity of the third offender. That this was an area of interest for his Honour's purposes was reinforced by the exchange which occurred immediately after the Crown indicated what had been agreed about the content of the ERISP, which I have extracted in [19] above, and the questions his Honour asked of the applicant, which I have extracted in [24].
Ultimately, however, the basis on which his Honour did not accept that the applicant's evidence of remorse, as reported to Dr Pusey and as he gave it in court, was genuine was his Honour's view that the applicant's responses in the ERISP did not constitute "clear admissions without obfuscation or prevarication". That conclusion was contrary to the agreed position of the Crown and the applicant's counsel regarding what the applicant had said in the ERISP regarding his own involvement. True it is that at the conclusion of the hearing his Honour made it clear that he had not read the whole of the ERISP and that this remained an outstanding task. As the Crown pointed out, his Honour also gave the applicant's counsel an opportunity to put on further written submissions after the hearing. However, in circumstances where the parties had proceeded on the basis that the applicant had admitted to his own offending conduct in the ERISP, and the Crown not only did not seek to make anything of the manner in which he made those admissions but was prepared to accept them as frank, the use that his Honour made of the ERISP involved a denial of procedural fairness. As Basten AJA stated in Smith at [41] (Adamson JA and Wilson J agreeing): "That is not to say that a judge may not reject evidence, or even a submission, without giving advance warning to the party adversely affected. It is to say, however, that there will at least be a risk of procedural unfairness if that step is taken in relation to evidence or submissions which constitute common ground between the parties who have, based on that common understanding, not addressed that aspect of the case."
As to the applicant's further contention that the sentencing judge denied him procedural fairness in finding that his evidence of remorse was not genuine, a sentencing judge is not required to accept evidence of remorse, even where an offender has given evidence on oath: Mihelic v R [2019] NSWCCA 2 at [69] (and the authorities there cited). I accept the Crown's further submission that it is for an offender to establish remorse on the balance of probabilities, consistently with R v Olbrich (1999) 199 CLR 270; [1999] HCA 54; Newman v R [2018] NSWCCA 208 at [31] (Payne JA, Johnson and Campbell JJ). I would not have concluded that his Honour denied the applicant procedural fairness with respect to his finding on remorse alone, which was ground 1(c). However, as I have noted above, the applicant's responses in the ERISP were central to his Honour's finding that the applicant's expressions of remorse were not genuine, and his Honour denied the applicant procedural fairness in that respect. I would thus uphold ground 1(a) of the notice of appeal.

Ground 2: the sentence was manifestly excessive

In addition to alleging that the sentencing judge denied procedural fairness, the applicant contended that the sentence imposed was manifestly excessive. I have concluded that the sentencing judge denied the applicant procedural fairness, and neither party submitted that, in the event that the Court upheld that ground, the matter should be remitted. Accordingly, it is not necessary to deal with the manifest excess ground, as I must move to resentence in any event: see eg Crane v R [2024] NSWCCA 87 at [106] (Yehia J); Whipp v R [2024] NSWCCA 79 at [64] (Button J).

Re-sentencing

The Court must exercise the sentencing discretion afresh and do so in accordance with the High Court's decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell"). In Turnbull v R [2019] NSWCCA 97 at [40], Simpson AJA emphasised the need for an appellate court that re-exercises the sentencing discretion "to put aside the sentence imposed at first instance". Her Honour described the process in the following terms at [44]: "… the duty of this Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that 'no lesser sentence is warranted in law'. This Court must, as was made clear in Kentwell, take into account the purposes of sentencing and any relevant legal sentencing requirements, the agreed or determined facts, its assessment of the criminality involved, together with factors personal to the offender that may bear upon the selection of the appropriate sentence. That includes, as was made clear in Simpson [(2001) 53 NSWLR 704; [2001] NSWCCA 534] and Baxter [[2007] NSWCCA 237], and restated in Kentwell, any post sentencing factors of which evidence has been admitted. It is appropriate to adopt relevant findings of disputed fact made by the sentencing judge. And where assessments or evaluations (for example, of objective gravity or of the offender's prospects of rehabilitation) have been made that have not been the subject of challenge, they also may be adopted and acted upon."
The applicant did not rely on any additional evidence in the event that this Court moved to re-sentence. The Crown read an affidavit of Steven Thomson, the solicitor with carriage of the matter for the Director of Public Prosecutions, sworn on 30 May 2024. Mr Thomson deposed that he obtained an updated custodial history for the applicant from the Department of Corrective Services, along with three misconduct reports which were annexed to his affidavit. These documents indicated that, since sentencing, the applicant has incurred the following custodial infringements: 1. On 14 November 2023, the applicant failed to comply with Correctional Centre routine, for which he received two days in his cell. The misconduct report indicated that the applicant failed to comply with a direction to go into the yard. After calling on other inmates also to stay in the pod, most of whom ignored his calls and went into the yard as directed, the applicant then exited the pod. 2. On 28 November 2023, the applicant disobeyed a direction and possessed a drug implement, for which he received, respectively, 14 days off buy-ups and five days in his cell. The report for this infringement recorded that the applicant was observed in the yard acting strangely, and was then seen secreting an article in his pants pocket. When he entered the dayroom he was directed to empty his pockets, which he refused to do. When the applicant walked back towards the yard, he was again directed to empty his pockets, whereupon he took an aggressive stance, stated "yeah you got me", and retrieved a capped gaol-made syringe from his pocket which he handed to the correctional officer. 3. On 6 May 2024, the applicant disobeyed a direction and intimidated two correctional officers, for which he received 14 days off buy-ups. The direction was given after the applicant was subject to a regulation strip search and was found to have a watch that he admitted was not on his property card. After searches were completed, the applicant became argumentative and abusive towards the two correctional officers. When directed to kneel, the applicant sat on the floor of his cell and refused to kneel.
Save for the sentencing judge's finding regarding remorse, the applicant did not take issue with the findings of the sentencing judge. Accordingly, it is appropriate to proceed for the most part on the basis of the facts that his Honour found. In support of the submission that no lesser sentence was warranted in law, the Crown called attention to the following matters, each of which I have considered (albeit with some qualifications as noted below): 1. The maximum penalty for the s 111(1) offence is 10 years imprisonment. 2. The sentence also needed to take into account the Form 1 offences, noting that in this respect the applicant was the beneficiary of an error on the part of the sentencing judge, who stated that the maximum penalty for the steal motor vehicle offence was 5 years imprisonment, when it is in fact 10 years imprisonment. I note that his Honour correctly stated the maximum penalty for larceny as 5 years. 3. The applicant was prepared to confront the victim to steal from him and the stolen car (for which the victim had not been compensated) was obviously valuable. The offence also involved some pre-meditation, with co-offenders involved. Although I accept those matters, it is also important to note in this context, as the sentencing judge found, that the contact between the applicant and the victim was of relatively short duration and there was no injury to the victim (as he fled almost immediately). Additionally, as to the steal motor vehicle offence, his Honour considered it was not possible on the facts to say whether the applicant intended to steal the car from the outset, "and it may be that that was a spontaneously engaged-in benefit from his observation of the Mercedes key in the hotel room". 4. There was no genuine evidence of remorse, but even assuming the applicant's remorse was genuine little weight could attach to it because it did not indicate the unlikelihood of further offending. I address remorse further below. 5. The applicant has a high risk of re-offending. 6. The applicant has an extensive criminal record, including for similar offences. I accept, as did the sentencing judge, that this disentitles him to leniency. 7. At the time the applicant engaged in the offending conduct, he was in breach of a 12-month community correction order that was imposed three days earlier in Hornsby Local Court, for goods in custody and other offences. I accept that this is an aggravating factor. 8. The applicant's custodial history showed entries for revocation of parole along with numerous custodial infringements.
The remorse shown by an offender for the offence is a mitigating factor on sentence only if an offender "has provided evidence that he or she has accepted responsibility for his or her actions", and "the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)": Crimes (Sentencing Procedure) Act, s 21A(3)(i). As the applicant submitted, in response to submissions from the Crown that emphasised the absence of any offer to make reparations notwithstanding the applicant's receipt of the compensation from Juvenile Justice, it is sufficient for the purposes of s 21A(3)(i)(ii) that an offender has acknowledged any injury, loss or damage caused by his or her actions. The applicant did accept responsibility for the offences he committed on 29 October 2022 and acknowledged the impact of his offending on the victim. His entering a plea of guilty at an early opportunity is also some evidence of contrition. However, I have not placed too much weight on the applicant's remorse and contrition given his criminal record and his custodial history and the assessed risk of his re-offending.
I have otherwise considered the applicant's subjective circumstances as recorded by Dr Pusey. I have also taken into account Dr Pusey's opinion that at the time of his offending conduct on 29 October 2022, the applicant would have been suffering from a major depressive disorder "which, when acting in combination with pathology relating to his diagnosis of a Substance Use Disorder, impaired his judgment and behaviour as a result of the circumstances to which he was imposed".
The applicant pointed to the sentencing statistics that the Judicial Commission maintains on the Judicial Information Research System (JIRS). As the joint judgment explained in Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [55] (quoting Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [59]), the "production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were" (emphasis in original). Further, the JIRS information for s 111 of the Crimes Act indicates that the offence has been the subject of sentence as the principal offence on a small number of occasions and, as the Crown submitted, the data does not reveal whether there were other offences taken into account on a Form 1. Nonetheless, I have had regard to the limited JIRS statistics as "a yardstick against which to examine a proposed sentence": Skocic v R [2014] NSWCCA 225 at [19] (Bellew J, Macfarlan JA and Fullerton J agreeing).
I consider that an appropriate sentence for the applicant is a term of imprisonment of 4 years. Applying the full 25% discount for the utilitarian value of his plea, I propose a term of imprisonment of 3 years. The sentencing judge did not make a finding of special circumstances and the applicant did not seek to persuade this Court that such a finding should be made. I propose a non-parole period of 2 years and 3 months. Backdating the sentence, as his Honour did, to 29 October 2022 (being the date on which the applicant was taken into custody), the non-parole period expires on 28 January 2025 and the total sentence expires on 28 October 2025.
I note that counsel for the applicant drew this Court's attention to the submission made on behalf of the applicant below in support of an intensive correction order (ICO), and submitted that if the Court were of the view that there was a need to resentence, an ICO was something that may be considered. Having regard to the length of the sentence of imprisonment that I consider appropriate, an ICO cannot be made in this case: Crimes (Sentencing Procedure) Act, s 68(1).

Conclusion

I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence of imprisonment imposed on the applicant in the District Court on 6 November 2023. 4. In lieu thereof, sentence the applicant to a non-parole period of 2 years and 3 months commencing on 29 October 2022 and expiring on 28 January 2025, with a balance of a term of 9 months, expiring on 28 October 2025. The total term is 3 years' imprisonment. 5. The earliest date upon which the applicant will be eligible for release to parole is 28 January 2025.
SWEENEY J: I agree with Mitchelmore JA that Ground (1) (a) is made out, for the reasons her Honour has given. I agree with the orders proposed by her Honour.
HUGGETT J: I agree with Mitchelmore JA that Ground (1) (a) is made out, for the reasons her Honour has given. I agree with the orders proposed by her Honour.

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: 18 November 2024

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