Finding on remorse
112 Reliance on unsworn material in a sentence hearing was considered in R v Elfar, a case referred to by the Prosecutor. The Court of Criminal Appeal per Whealy J (Ipp JA and Davidson AJ concurring) stated at [24] - [25]:
24 The Crown referred to two decisions of this court - R v Qutami [2001] NSWCCA 353; [2001] 127 A Crim R 369 and R v McGourty [2002] NSWCCA 335. In the latter of these cases Wood CJ at CL said, at paragraph 24:
"So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to the psychologist. Recently this court has criticised the practice of placing material of this kind before sentencing judges in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of the record: Regina v Qutami [2001] NSWCCA 353, at para 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ. I wholeheartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested."
25 The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - ( R v Palu per Howie J with whom Levine J and Heydon J agreed [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so.
113 This decision was referred to by Preston J in Garrett v Williams in relation to the actions of a defendant relying on unsworn evidence in the form of a letter tendered in those proceedings. The evidence of remorse relied on by the Defendant, Mr Johnson, in this matter is different in that it is sworn evidence of someone other than the individual Defendant, namely Mr Mutton, attesting to Mr Johnson's statements of remorse. Mr Mutton was available for cross-examination. Mr Mutton is the CEO of JPG not the sole director, who is Mr Johnson. His evidence concerning corporate practice and the remorse of Mr Johnson has less weight than that of Mr Johnson as he cannot be considered independent of either Defendant.
114 The Defendant submitted that Mr Mutton's evidence could be tested by the Prosecutor but I agree with the Prosecutor that it is difficult to see how it could be meaningfully tested. Asking Mr Mutton, an employee of the Defendants, whether he considered the statements of remorse made by Mr Johnson were genuine is not an adequate means of testing such statements. Such evidence may carry more weight if it came from a person independent of the Defendants. Mr Mutton is not independent of the Defendants.
115 Criminal actions and defendants are many and varied. Many criminal defendants particularly those from non-English speaking or disadvantaged backgrounds may need to rely on the evidence of others to prove their remorse. As stated by me at the sentence hearing, the experience of this Court is that generally individual defendants in this Court attest directly to their remorse possibly because few suffer disadvantages which inhibit their ability to do so. While there is evidence from Ms Romano, Mr Mutton and Ms Cowper, all employees of JPG, that he experienced reading difficulties, there is no evidence to suggest he suffers such a disadvantage that he could not give direct affidavit evidence. There is correspondence from him to the Council in evidence, particularly the long letter dated 21 April 2006 (exhibit K3) and he owns and runs a substantial property development company suggesting he has considerable communication skills. Mr Johnson is the best person to give evidence of his remorse as an individual.
116 In the case of corporate defendants, I stated in Newcastle City Council v Pepperwood Ridge at [29] that little weight could be given to remorse on the part of a company in the absence of an affidavit of a director as the holder of the relevant state of mind in the company attesting to that. That statement applies in this matter also. Mr Mutton is an employee rather than a director of the corporate Defendant whose sole director is Mr Johnson. The best person to give evidence of the company's remorse is Mr Johnson.
117 In these circumstances Mr Mutton's evidence of remorse should be given little weight in relation to JPG and Mr Johnson.