John Wayne TSIAKAS v R

Court of Criminal Appeal (NSW)|2015-05-13|Before: Leeming JA, Johnson J, Beech-Jones J, Jones J

Judgment

LEEMING JA: I agree with Beech-Jones J.
JOHNSON J: I agree with Beech-Jones J.
BEECH-JONES J: On 25 July 2014 the District Court imposed on the applicant for leave to appeal, John Tsiakas, an aggregate sentence of imprisonment of five years and six months with a non-parole period of four years. His sentence commenced on 26 February 2013 and expires on 25 August 2018. His non-parole period will expire on 25 February 2017.
The sole ground of the application for leave to appeal is that there was a "miscarriage of justice" occasioned by the conduct of the solicitor who appeared at the sentence proceedings on his behalf (the "former solicitor"). The submissions made on behalf of the applicant in this Court identify a number of matters that it is said the former solicitor could have and should have put before the sentencing judge. To address these submissions it is first necessary to describe the offences to which he pleaded guilty, the course of the sentencing proceedings and the reasons of the sentencing judge. Otherwise it should be noted that, notwithstanding the accusations of incompetence made against the former solicitor, he was not afforded the opportunity by either the Crown or the applicant to provide an affidavit responding to the points raised. To the extent that the findings are made concerning his conduct they should be understood in that context.

The offences

On 24 July 2014 the applicant pleaded guilty to each of three counts that were included in an indictment that was presented against him in the District Court sitting in Port Macquarie. The first count charged him with an offence of attempting on 18 February 2013 to take a conveyance without the owner's consent (Crimes Act 1900; s 154A(1)(a)). The maximum penalty for that offence is five years imprisonment.
The second count charged him with breaking and entering a dwelling house on 19 February 2013 and stealing various items in circumstances of aggravation, namely that to his knowledge there were persons in the house (Crimes Act; s 112(2), s 105A(1)(f)). The maximum penalty for this offence is imprisonment for twenty years. It also carried a standard non-parole period of five years (see Div 1A Part 4 of the Crimes (Sentencing Procedure) Act 1999; the "Sentencing Act").
The third count charged that on 26 February 2013 the applicant drove in a manner dangerous to others knowing that police were in pursuit of the vehicle and that he was required to, but did not, stop (Crimes Act; s 51B(1)). As this was not his first offence of this kind, the maximum penalty for this count was five years imprisonment.
Three other offences were included on two documents filed by the Crown pursuant to s 32(1) of the Sentencing Act (a "Form 1"). In relation to the second count, the Form 1 listed an offence of taking and driving a conveyance on 19 February 2013 without the consent of the owner (Crimes Act; s 154A(1)).
In relation to the third count, the Form 1 listed another offence of taking and driving a conveyance without the consent of the owner. This offence was committed on 26 February 2013. It also included an offence of driving with the special range concentration of alcohol in his blood while a disqualified driver (Road Transport (Safety and Traffic Management) Act 1999; s 9(1)(a); repealed with effect from 1 July 2013 by Schedule 1 to the Road Transport Legislation (Repeal and Amendment) Act 2013) and unlawful entry onto enclosed lands (Inclosed Lands Protection Act 1901; s 4(1)).
Finally, in accordance with the procedure set out in s 166 of the Criminal Procedure Act 1986, the applicant was also sentenced for an offence of driving while disqualified contrary to s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998.

Facts of the Offences

Placed before the sentencing judge was an agreed statement of facts. What follows is a brief summary of that statement.
At about 10:25pm on the evening of Monday, 18 February 2013, the applicant and a co-offender alighted from a taxi in a residential neighbourhood near Kempsey. They approached a motor vehicle which was parked on the roadway outside a home and attempted to break in by opening the vehicle door. They ran off when the owner of the vehicle called out to them. One of the two offenders was holding a screwdriver. This conduct gave rise to the first count on the indictment. The Crown accepted that it could not prove whether the offender holding the screwdriver was the applicant or his co-offender. The applicant was sentenced on the basis that he was engaged in a joint criminal enterprise with his co-offender.
Some time between that time and shortly after midnight, the applicant broke into and entered a nearby home. He stole a number of items, including car keys, a mobile phone, a laptop computer, some house keys and one of the residents' wallet and contents. At the time of the break-in two of the occupants were asleep and the third occupant was working on his computer at the rear of his premises. That occupant heard his dog barking and walked out of the house. He saw his vehicle being driven off by the applicant and another person. The conduct of the applicant in breaking into and entering the home gave rise to the second count on the indictment. His conduct in taking and driving one of the occupants' cars was the take and drive conveyance offence included on the Form 1 associated with the second count.
At about midnight on 26 February 2013 police officers on patrol recognised the vehicle that had been stolen by the applicant on 19 February 2013. They activated their warning lights. The applicant was driving. He pulled over the vehicle. As the police approached the vehicle he drove away. He then drove through the streets of Leumeah and Campbelltown at grossly excessive speeds. At one point he was travelling at 115kph in a 50kph speed zone, and at another he was travelling at 130kph in a 60km/h zone. He drove on the wrong side of the road at high speed. He stopped to allow a female passenger to alight from the vehicle and he continued. He collided with a perimeter fence and a concrete barrier but continued driving on the incorrect side of the road for 100 metres before slowing his vehicle to 60kph and passing through a red traffic light.
The chase of the applicant took place over 5.5 kilometres. He eventually stopped, ran out of the vehicle towards some residential premises, scaled a fence and entered the backyard. He was caught with the assistance of a police dog. In his possession the police found the wallet and other contents stolen from the premises the subject of the second count.
The applicant's conduct in driving in a manner dangerous knowing that the police had required him to stop constituted the offence which was the third count on the indictment. His use of the car stolen while committing the second count constituted another offence under s 154A of the Crimes Act which was taken into account on the Form 1 associated with the third count. When breath tested he recorded a reading of .035. His conduct in driving with that concentration of alcohol in his blood while a disqualified driver and entering the backyard of the premises without the consent of the owners were the other two offences included in the Form 1 associated with the third count.

The Sentence Proceedings

At the commencement of the hearing on sentence the former solicitor advised the Court that, even though the applicant had been committed for sentence from the Local Court, the plea in that court had been entered by the former solicitor in the applicant's absence because of a difficulty with the audio visual equipment. The sentencing judge queried whether the applicant had been properly committed for sentence. The matter was then stood down. On resumption the former solicitor advised the sentencing judge that another solicitor from his office had spoken to the applicant and he "will be adhering to his pleas".
To overcome any possible difficulty with the plea the Crown presented an ex officio indictment. Just before the lunch adjournment, the applicant was arraigned. He pleaded guilty and confirmed that he wanted the Court to take into account the offences on the Form 1s. The Crown Prosecutor then tendered a bundle of documents including the statement of facts and copies of his criminal record in New South Wales, Victoria, Queensland and South Australia, as well as his traffic record. Their contents are summarised below. At this point it suffices to state that they were substantial.
The former solicitor then applied for an adjournment to obtain a pre-sentence report. The Crown Prosecutor opposed the application given his "significant criminal history" and that the offences were "objectively serious". The sentencing judge inquired whether there was any "particular aspect of [the applicant's] lifestyle and existence" that such a report would be able to assist that is not in the material already provided. The former solicitor replied that he did not "believe so". The matter proceeded on the basis that his Honour rejected the application.
After the luncheon adjournment the applicant gave oral evidence. He stated that he was 37 years of age. He grew up in a family of thirteen, and was made a ward of the state at age 6. He said he was sent to Greece to stay with his extended family on his father's side at the age of seven. He stayed two years before returning. He stated that he was sexually assaulted by his brother from when he was "probably two, three" and that he had raised that with a psychiatrist in counselling sessions. He said he had been "hoping" to get a report but was unable to. Later in his evidence the applicant stated that he had seen psychiatrists who had "put labels on me as a - they put me as a - bipolar [and] ADD". He also said he had a long term problem with alcohol but had never undertaken a residential rehabilitation program.
In his evidence in chief the applicant also stated that he had not spoken to the police in relation to his co-accused but "if they were willing to come and see me, I have no - I have no [difficulty] in giving my part of the story" and that "of course" he would give evidence against his co-offender. In cross examination he stated that his solicitor had told him a number of weeks prior that his co-offender had provided a statement against him. The applicant said that he would now assist the police because "why not, he's the one that [is] making me go down for everything". In re-examination the applicant stated that the former solicitor had discussed with him whether he wanted to give evidence against his co-offender. He said that the matter was left on the basis that the applicant would have a "think about" it.
After his evidence concluded the applicant's solicitor commenced his submissions. The topic returned to the subject of obtaining reports. It included the following exchange: "[FORMER SOLICITOR]: He wanted to raise it just as he wanted me to ask for a pre-sentence report when I too would have to agree with the learned prosecutor that we look at pre-sentence reports when there's alternatives to imprisonment. HIS HONOUR: The pre-sentence report's not going to provide me with any assistance at all but he wanted to raise the fact that he was sexually assaulted by his brother at some point when he was 2 or 3 which he reported to someone when he was 19, is that correct? OFFENDER When I talked about it - when I talked about it. HIS HONOUR: Please don't address me. If you want to raise anything you speak to [former solicitor] and he'll bring it to my attention if he believes it's appropriate to do so. But at what significance is it? Assuming that it's correct and a truthful representation, at what significance is it in the commission of these offences? How does that impact upon the sentence exercise here? [FORMER SOLICITOR]: At the highest point it might show why he doesn't feel that he's a part of the community hence his actions against the general community. But again that's something that he wanted to raise. HIS HONOUR: Well there's no evidence of that. He has been categorised as having bipolarity by a psychiatrist somewhere. There's no material at all. [FORMER SOLICITOR]: There's no material here, no. HIS HONOUR: Do you know the psychiatrist who attended him? [FORMER SOLICITOR]: I haven't even asked him for it because I know I wouldn't have got a report. I know the legal service doesn't pay for reports anymore unless a court really forces us and in the last 12 months I've only had one where I'm still getting difficulty having that young offender before the psychiatrist. They're thin on the ground those reports." (emphasis added)
Later in his submissions the applicant's solicitor addressed the possibility of his obtaining a discount for the offer of assistance to the authorities. The sentencing judge referred to s 23 of the Sentencing Act and inquired whether "any thought [had] been given to doing something about that in more concrete terms". The exchange continued: "HIS HONOUR: Bearing in mind that he's looking at a significant period of time in gaol. If he wants the benefit of that you're going to have to put something before me or take some concrete steps toward it. His answers in the witness box suggested some ambivalence about doing it. I'm not going to adjourn the matter just on the speculation that he might want to take some steps. So I'm going to adjourn for 5 minutes. You can take any instructions you need to take and then I'll decide what to do after that. SHORT ADJOURNMENT HIS HONOUR: Yes [former solicitor]? [FORMER SOLICITOR]: Might be quick if I call him to confirm that he does not want to co-operate. HIS HONOUR: He does not? Okay all you need to do is you had the opportunity to take instructions from him and he doesn't want to take the matter any further. [FORMER SOLICITOR]: Yes.

Sentencing judgment

In the sentencing judgment his Honour identified the offences and described the facts of those offences in terms consistent with the above. Otherwise I note ten matters about the sentencing judgment.
First, his Honour noted that the applicant had been sentenced on 23 April 2012 to twelve months imprisonment with a non-parole period of nine months for "another episode of driving recklessly when pursued by the police". Thus his Honour (correctly) observed that the applicant had been on conditional liberty for a little more than a month before he was arrested again.
Second, his Honour noted that the applicant's parole had been revoked after his arrest. Nevertheless, his Honour determined that the sentences for these offences should commence from when he went into custody, namely 26 February 2013, even though the balance of his parole expired after that date.
Third, his Honour gave the applicant the benefit of a discount of 25% on account of his plea of guilty.
Fourth, his Honour identified the third count as being a "worst case example of the offence charged", and recorded that, but for his plea of guilty, he would have imposed the maximum penalty. His Honour found that the second count fell below the "middle range of objective seriousness" for offences of that kind.
Fifth, the sentencing judge noted that the applicant was now 37 years of age and "to date his life has been perpetually one of crime". His Honour summarised the applicant's prodigious criminal record which, as indicated, spans four States. His Honour noted that the applicant's record in New South Wales was relatively modest consisting of an offence of break, enter and steal, taking and driving a conveyance in 1995 and the offence committed in April 2012 noted in [25] above.
The applicant's criminal record in Queensland consisted of a series of appearances in the Children's Court from 1987 to 1990, and then a continuous stream of appearances from 2002 onwards. He committed numerous dishonesty and driving offences, including breaking and entering, theft of motor vehicles, dangerous driving, fraud, and arson.
The apparent lacuna in the applicant's criminal record in the 1990s so far as NSW and Queensland were concerned was filled by his record in Victoria. In the period 1991 to 1999 he committed a series of offences in Victoria similar to those committed in Queensland, including aggravated burglary, entering building with intent to steal, theft of motor vehicles, trafficking cannabis, assaulting police and numerous driving offences. His most recent conviction in Victoria was in March 2010 where he was convicted of aggravated burglary, entering a building with intent to steal, tampering with a motor vehicle and driving while disqualified. For those offences he received a custodial sentence.
The applicant's offending in South Australia included a series of larceny and motor vehicle offences committed between 1999 and 2003, and further convictions in May 2011 for serious criminal trespass and dishonestly taking property without the owner's consent.
His Honour found that the applicant "[had] spent his lifetime to date engaged upon the commission of crime without taking whatever steps he might have taken to address the criminogenic factors leading to his lifestyle".
Sixth, the sentencing judge noted that he had not received any material by way of a pre-sentence report or a psychiatrist's report, a matter that is at the core of this application. His Honour recorded that an application had been made to adjourn the proceedings for a pre-sentence report, but that had been opposed by the Crown Prosecutor and refused as "nothing other than full time custody is required in respect of each of the three offences upon which sentence is to be imposed".
Seventh, his Honour noted that the applicant had given evidence but found him to be "an unimpressive witness" such that his evidence was "unreliable and deserving of little weight". His Honour noted that the applicant had recounted that he considered himself "at risk in NSW" because he had no real community ties as his family was all living in Queensland, but he could not travel to be with them because he was a parolee in this State. The sentencing judge also recorded the applicant's evidence that he had an alcohol problem and that he wanted to seek rehabilitation, but he "has never had the opportunity to do so before". The sentencing judge was sceptical of this given his extensive criminal history. The sentencing judge otherwise noted that, in his evidence, the applicant had sought to minimise his role in the offences.
Ultimately his Honour concluded that there was "no evidence before me that might suggest that [the applicant's] resort to alcohol and whatever challenges he might face intellectually contributed to his participation in these offences to the extent that they might ameliorate the punishment that he justly faces".
Eighth, his Honour noted that the applicant stated in his evidence that he had seen a psychiatrist "who put a label on him that suggested that he suffers from a bi-polar disorder". The sentencing judge also noted that the applicant stated that he "wanted the opportunity to assist the police with regard to the participation of his accomplice in these crimes". His Honour recorded that "the opportunity was discarded when I returned" and recorded the effect of the exchange set out at [23].
Ninth, the sentencing judge expressed doubt as to whether the applicant was remorseful and contrite. His Honour considered that his prospects for rehabilitation were "scant".
Tenth, before imposing an aggregate sentence, his Honour specified the indicative sentence for each of the offences on the indictment. In respect of count 1 his Honour specified an indicative sentence of a fixed term of one year commencing on 26 February 2013 and expiring on 25 February 2014. In respect of the third count his Honour specified an indicative sentence of three years and nine months commencing on 26 September 2013 and expiring on 25 June 2017. In respect of the second count, his Honour specified an indicative sentence of four years and six months commencing on 26 February 2014 and expiring on 25 August 2018. His Honour stated that he "would have specified a non-parole period concluding on 25 February 2017".
To the extent that his Honour specified commencement and conclusion dates for these indicative sentences, that was not required by s 53A(2) of the Sentencing Act.

Incompetence of Counsel and Sentence Proceedings

As noted the sole ground of Mr Tsiakas' application is that the conduct of the former solicitor during the sentence proceedings resulted in a miscarriage of justice.
In some circumstances the incompetence of Counsel acting for an accused person at a trial may be of such a kind that it gives rise to a miscarriage of justice justifying intervention by this Court. In such cases what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd v R [2006] HCA 9, 80 ALJR 614 at [24] per Gummow and Hayne JJ; "Nudd"; TKWJ v R [2002] HCA 46; 212 CLR 124 TKWJ at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J; "TKJW").
The demonstration of a "miscarriage of justice" is the third basis for setting aside a conviction referred to in s 6(1) of the Criminal Appeal Act 1912. Even though it is not a statutory basis for interfering with the exercise of a sentencing discretion, a number of decisions of this Court have adopted that test and the associated discussion in Nudd and the other cases on the same topic as applicable to applications for leave to appeal from sentence (eg Raymond John Munro v Regina [2006] NSWCCA 350 at [24] to [25] per Beazley JA with Sully and Hislop JJ agreeing; Puan v R [2009] NSWCCA 194 at [28] per Howie J, with whom Hodgson JA and Fullerton J agreed, and [54] and [55] per Fullerton J; Garland v R [2009] NSWCCA 217 at [26] per McCallum J, with whom McClellan CJ at CL and Howie J agreed). In effect, these decisions appear to treat a conclusion that a miscarriage of justice of this kind was occasioned by the conduct of an offender's legal representative as equivalent to a finding that there was a denial of procedural fairness. The affording of procedural fairness is an "immutable characteristic" of a court, including a court exercising a discretion to impose a sentence (Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [194] per Gageler J). The establishment of a breach of procedural fairness in the course of sentencing proceedings is a basis for interfering with the exercise of the power to impose a sentence.
With both appeals against conviction and sentences, it is not sufficient to warrant intervention to simply point to some failing, even a gross failing, of the legal representative who appeared during the sentence proceedings. In conviction appeals, where incompetence to the relevant standard is demonstrated, the Court considers whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24]). In sentence appeals an analogous principle applies. Thus this Court has considered whether "compelling material was available but not tendered, or its significance not appreciated" (Pym v R [2014] NSWCCA 182 at [75] per Fullerton J, with Hoeben CJ at CL and Price J agreeing; "Pym"), whether material of "significance" was not presented (R v Abbott (1985) 17 A Crim R 355, 356 per Street CJ) or whether the sentencing court was deprived of a consideration of an offender's circumstances (Munro at [25] per Beazley JA). However, it has also been said that "it will be a very rare case" that a miscarriage of justice will have occurred "simply because of a defect in submissions made to a sentencing judge by defence counsel" (Puan at [55] per Howie J). Again these observations reflect the approach adopted with complaints of a denial of procedural fairness namely that "[f]airness is not an abstract concept. [it] is essentially practical" and that "the concern of the law is to avoid practical injustice" (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ).
The application of these principles is illustrated by the facts in Pym in which Counsel for the offender failed to tender a number of reports from a psychiatrist the last of which stated that he committed the offences in an "altered state of consciousness" (Pym at [9]). At the hearing of the application for leave to appeal in this Court the Crown tendered reports from its own psychiatrist which expressed a different opinion (Pym at [11]). The Court did not determine the "question of the weight that might have [ultimately] been attributed by the sentencing judge to the unpresented psychiatric material" (Pym at [76]) but was nevertheless satisfied that the further material was of such substance that it warranted the conclusion that the sentencing court had proceeded "on the basis of incomplete information" (Pym at [84]). The proceedings were remitted to the District Court for a "fresh sentence proceeding" (Pym at [85]).

Evidence on the Appeal

At the hearing of the appeal the applicant sought to tender a number of affidavits and reports. The evidence is potentially admissible on a number of different bases. The first is to support the allegations of incompetence on the part of the former solicitor. While the inquiry into that conduct is so "far as justice permits, … objective" (Nudd at [10]) evidence supplementing the proceedings at first instance can still be received including evidence which concerns the instructions received by the legal representative (Nudd at [10]; Vella v R; Siskos v R [2015] NSWCCA 148 at [96] to [98]).
Second, the material is relevant to determine whether the alleged default of the former solicitor was productive of a miscarriage of justice in accordance with the principle discussed in [44].
Third, if the ground of appeal is successful and the Court does not remit the proceedings but proceeds to re-sentence, much of this material is admissible because of its relevance to the re-exercise of the sentencing discretion.
It is necessary to summarise the additional evidence. Applicant's affidavit
An affidavit sworn by the applicant was read at the hearing of the application. He stated that he had a number of conferences with his former solicitor prior to the sentence hearing. He said that at one of the conferences he provided contact details for his mother but his former solicitor did not contact her. He also stated that he told the former solicitor that he had been sexually assaulted in his youth and had requested he obtain a pre-sentence report. He said he told him that he wanted to attend a full time rehabilitation facility but was advised that "I have been doing this for 30 years [you are] not getting rehab". He stated that he told his former solicitor that he wanted to give the police "information about my co-offender". He recalls that the former solicitor stated "you don't want to do that, you'll have to go into protection [but only] get a 15% discount". The applicant did not address what happened during the short adjournment referred to in [23]. On the hearing of this application it was accepted that he instructed his solicitor that he did not want to provide evidence against his co-offender.
The applicant stated that his former solicitor did not seek his instructions concerning particular aspects of the Crown's case, including the use and possession of the screwdriver referred to in [12]. He recalled that the discussions were "focussed on me having to plead guilty". He said that on the morning of the sentencing the applicant's solicitors arranged for another solicitor from his office to discuss the applicant's plea of guilty with him. After this discussion he adhered to his plea. No affidavit has been read from that solicitor. In his affidavit the applicant asserted that around this time he told his solicitor he did not want to plead guilty. This aspect of the affidavit need not be considered further. No part of this application involved an application to reverse the applicant's plea nor any challenge to the agreed statement of facts. Other affidavits
An affidavit was read from Robert Tumeth, the principal legal officer of the Northern Region of the Aboriginal Legal Service Ltd ("ALS"), the employer of the former solicitor. Mr Tumeth explained that he was responsible for approving the retainer of psychiatrists and psychologists to provide reports on behalf of ALS's clients in the Northern Region. He stated that he typically approved the ordering of such reports when requested for District Court matters and that he could not ever recall refusing a request for a psychological or psychiatric report in such cases. He said that he was never asked to approve the retention of a psychiatrist or a psychologist to provide a report concerning the applicant.
There was also read an affidavit from the solicitor now acting for the applicant. She annexed a copy of the former solicitor's file concerning the applicant. Although it was bulky no submissions were made to this Court concerning any particular entry or omission in the file. The solicitor also annexed a report from a psychologist, Ms Anna Robilliard, dated 1 September 2014 and copies of the applicant's JusticeHealth file. Both the report and the file contain a mixture of material that relates to the period prior to the sentence and after his sentence. It follows from [46] to [48] that the former is primarily relevant to a determination of whether a miscarriage of justice was occasioned whereas the latter is primarily relevant to the exercise of any discretion to resentence the applicant. Ms Robilliard's report
Ms Robilliard interviewed the applicant on 31 July 2014. Her report provides more detail of the applicant's background than the applicant provided to the sentencing judge. She records the applicant as stating that he had witnessed violence in the family home especially by his father towards his mother. The applicant told her that his parents both had chronic drinking and gambling habits but that his mother stopped drinking many years ago. The applicant's mother is from Aboriginal-Chinese background and his father was born in Greece. Ms Robilliard described his family circumstances as "highly dysfunctional". She records the applicant stating that his mother would periodically take him and his siblings to stay with his grandmother on the Cherbourg Mission in Queensland, although there would later be reconciliations with his father. Ms Robilliard reported that the applicant stated that he was placed in a children's home where at one point he was sexually molested by a child care worker, and that he recalled being sexually molested by one of his half-brothers. She recounts that he stated that "he never received any counselling with regard to sexual abuse", however she also recorded him as stating "that he does not think it affects him anymore". The Crown's submissions noted that the age at which the applicant said these incidents occurred differs from what he stated in his evidence to the sentencing judge, namely "2 or 3 years of age".
Ms Robilliard's report recounts that when the applicant was thirteen the family was living in Mildura and his mother went to university and obtained a degree. She then worked for the Aboriginal Co-op before working for Centrelink for about twenty years and has recently retired. She is described as "unfailingly supportive" of him but he has less contact with his father. Ms Robilliard stated that the applicant left school in Year 8 and had very little employment history and had not formed any stable relationships.
Ms Robilliard reported that the applicant had a history of substance abuse, particularly alcohol. The applicant told her that he had started drinking at age eight and that he had gambled "all of his life". Ms Robilliard had access to the applicant's JusticeHealth records. She noted that when the applicant was taken into custody in February 2013 he underwent detoxification and that reception screening in July 2013 reported alcohol dependence and depression. She said that depression was noted again on 21 February 2014, but the notes are missing from that point until 23 May 2014. There was no further mention of treatment for depression after that. The applicant was prescribed medication for improving mood stability. She records the applicant stating that he felt "normal".
Ms Robilliard administered a number of intelligence tests which revealed that he was of average intelligence. She also assessed the severity of his alcohol dependence. She concluded that he had a psychological dependence on, and a compulsive use of, alcohol.
Ms Robilliard concluded that in her opinion the applicant had "presenting conditions" of chronic institutionalisation, addiction to substances and gambling, and an underlying depressive mood state. She stated that on the positive side he has the "protective factors" of average intelligence, intact memory and strong family ties particularly with his mother. Ms Robilliard included in her report a number of recommendations for his management in custody, especially given that he was chronically institutionalised. JusticeHealth file
Ms Robilliard's report identified most of the relevant entries in the applicant's JusticeHealth file. The parts of the file that were tendered on the appeal also included an entry dated 13 May 2012 which referred to a previous diagnosis of "schizophrenia". In addition, the file included a "reception screening tool" document dated 25 April 2012 which asked the applicant whether he had "ever been treated for a mental health problem?" He replied "ADD [and] schizophrenia". It is clear that this material is simply recording what the applicant told JusticeHealth staff. There is no material on the file to which the Court was taken which records any diagnosis of the applicant by an appropriately qualified professional.

Failure to obtain and tender reports

One of the principal complaints made about the conduct of the former solicitor in this Court is his failure to obtain and tender either a psychological or psychiatric report to place before the sentencing judge or tender any JusticeHealth records.
As noted, during the sentencing proceeding the applicant made reference to having consulted a psychiatrist, having been diagnosed with "bipolar", and having discussed his being sexually assaulted with either a counsellor or health professional. While the sentencing judge was dismissive of the utility of a pre-sentence report, his Honour did inquire about a psychiatrist's report but was advised that the ALS "doesn't pay for reports anymore unless a court really forces us". Mr Tumeth's evidence is inconsistent with that statement.
The Crown submitted that the decision not to obtain such a report was a "deliberate" and "considered" decision of the former solicitor reflecting an assessment that it could "do little to assist" the applicant. I disagree. There were a number of aspects of the applicant's case that raised the potential need to obtain such a report namely his long periods in custody, his references to mental health issues and past sexual abuse. No definitive assessment of whether a report would assist could be made until it was obtained. Even if one accepts the statement made to the sentencing judge reflected the former solicitor's honest assessment, it was based on a false premise that the ALS would not pay for it. In the end result, there was no justification for the failure of the applicant's former solicitor to obtain, or at least consider obtaining, such a report. However, was this failure productive of a miscarriage of justice?
Although the matter raised in the exchange between the sentencing judge and the applicant's former solicitor was the possibility of obtaining a psychiatrist's report no such report has since been obtained. In those circumstances, I cannot conclude that the failure to obtain such a report would, or even could, have included material of assistance to the applicant. Instead the only material that has been tendered before this Court which enables an assessment of what the applicant was denied at the sentencing proceeding on this point was Ms Robilliard's report and the JusticeHealth file.
I have outlined the contents of Ms Robilliard's report above. It is notable that Ms Robilliard did not point to any connection between the applicant's offending and any aspect of his family history, depression or his being the victim of sexual assaults. In relation to the latter Ms Robilliard recorded the applicant's comments that "he does not think it affects him anymore".
Ms Robilliard's report provides a fuller and more sympathetic outline of the applicant's subjective circumstances than the applicant provided in his evidence to the sentencing judge. She identified his depressive mood state and addictions to substances and gambling. She also identified some "positive factors", namely his intelligence and links to his mother. With the benefit of hindsight it can be accepted that the presentation of her report would have assisted the sentencing judge in obtaining a fuller description of the applicant's circumstances. However I do not accept that any miscarriage of justice was occasioned by the failure to obtain a report, or a report like it, to place before his Honour. The overall effect of the subjective circumstances that Ms Robilliard outlines is not substantially different from that presented to the sentencing judge. It was clear at the sentencing hearing that the applicant had a history of alcohol abuse and that his long periods in custody meant that he was effectively institutionalised. The fact that he had support from his mother could not have altered the assessment that his prospects of rehabilitation were negligible. That his background was dysfunctional and that he had an alcohol problem was the entire premise of the sentencing exercise.
Otherwise, in so far as the applicant told the sentencing judge that he believed he had been previously diagnosed as "bipolar" and the sentencing judge referred to the absence of a psychiatrist's report, then this material does not advance matters. Other than the applicant's assertions, there is no material before this Court evidencing much less explaining any such diagnosis.
The evidence demonstrates that the former solicitor's representation of the applicant in this respect was less than the standard to which the applicant or any other offender was entitled. He was entitled to expect that at least genuine consideration would be given to obtaining a psychiatrist or psychologist's report on his behalf. Instead a consideration of the necessity to obtain such a report appears to have been dismissed on a false basis. A fuller picture of the applicant's circumstances could have been presented but the one that was presented was basically accurate. Given the applicant's criminal history and the nature of his offending, something of real significance was required to be presented before this Court if it was to be capable of materially affecting the outcome of the sentencing hearing. Neither the contents of Ms Robilliard's report nor the JusticeHealth file raise any matter of potentially sufficient weight to warrant a conclusion that a miscarriage of justice was occasioned by the former solicitor's failure to present it.
One part of the applicant's written submissions referred to the failure of the former solicitor to obtain a Justice Health report. This Court does not have the benefit of such a report so there is no means of assessing what its potential effect on the sentencing exercise might have been. There is no reason to conclude that it would have said anything different to the Justice Health file or Ms Robilliard's report.

Assistance to the Authorities

The applicant's written submissions also pointed to the alleged failure of the former solicitor to "explore with him the possibility of … giving a statement to the police" about his co-offender. The submissions referred to the answers elicited from the applicant in re-examination which referred to him raising the possibility of assisting the police, but not seeking any answer from the applicant that he wished to do so. The submissions assert that, as a result, the "applicant might have lost the opportunity to obtain a discount on his sentence by reason of his assistance to the police".
This complaint has no substance. The applicant's own affidavit reveals that the former solicitor did explore with him the possibility of providing assistance prior to the sentence hearing on 24 July 2013. In any event it is not in issue that the applicant ultimately instructed the former solicitor that he did not want to assist the police in pursuing his co-offender. There is no evidence that the applicant's position on that has changed. He did not state in his affidavit that he now proposed to give evidence against the co-offender.
In these circumstances no miscarriage of justice was occasioned by, or as a result of, any failure of the former solicitor to "explore" anything about assistance with the applicant. The evidence unambiguously demonstrates that he did not want to provide assistance and there is no evidence to suggest that position has altered.

Other Complaints

Four other complaints were made in the applicant's written submissions concerning the former solicitor's conduct. They can be dealt with briefly.
First it was contended that the former solicitor failed to tender any evidence from any family member of the applicant as to the serious disadvantage and dysfunction he suffered throughout his life. However no evidence from any family member was tendered on this application. All that is known about his disadvantage and family dysfunction was in Ms Robilliard's report and that has been addressed.
Second, it was contended that the former solicitor failed to make any submissions as "to any causal link between the applicant's offending behaviour and his childhood sexual assaults, his years in state care, his problem with alcohol abuse, his aboriginality and the general dysfunction of his life", or make any reference to the application of the Fernando principles" (R v Fernando (1992) 76 A Crim R 58). In relation to the former contention, there was no evidence available to the former solicitor as to existence of any such causal connection and none has been made available to this Court. In relation to the latter, the principles in Fernando involve a recognition that "social disadvantage … frequently (no matter what the ethnicity of the offender) precedes the commission of crime" (Kennedy v The Queen [2010] NSWCCA 260 at [53] per Simpson J, with Fullerton and R.A. Hulme JJ agreeing; Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [37]). As I have stated, a background of disadvantage was the premise upon which the sentencing exercise proceeded.
Third, it is contended that the former solicitor failed to ask "in a proper manner for a Pre-Sentence Report … so as to enable the sentencing judge to consider whether residential rehabilitation was a viable option, if not in the short term then as a recommendation to be made on the applicant's release from custody", that he failed to "tender any evidence as to the availability of appropriate residential rehabilitation programs" and failed to make any submission "as to the community's interest in assisting the applicant to successfully undergo rehabilitation".
Again, these complaints have no substance. The sentencing judge rejected the application to adjourn to obtain a presentence report because His Honour recognised that nothing other than a full time custodial sentence could be imposed on the applicant. His Honour was correct to do so. There was never even a remote possibility that the applicant could have been allowed to reside in a rehabilitation facility as part of his sentence and no miscarriage of justice was occasioned by either the failure of the former solicitor or the sentencing judge to explore that issue further. Further this Court is not determining any application for leave to appeal from a failure of the sentencing judge to make a "recommendation" about his participation in such a program on his release. The subject matter of the appeal is the sentence that was imposed not the absence of a recommendation. It is open to the applicant's representatives to suggest to the parole authorities that he be allowed to participate in such a program. Finally it was not necessary for the former solicitor to make any submission "as to the community's interest in assisting the applicant to undergo rehabilitation". It can be safely assumed that his Honour was aware of it.
Fourthly it was submitted that the former solicitor failed to make a submission in respect of a finding of "special circumstances" for the purposes of s 44(2) of the Sentencing Act arising from the need for him to receive "intensive support in the community on his release" and the need to address his alcohol abuse. I do not accept that the failure to make this submission to the sentencing judge amounted to a miscarriage of justice. The sentence imposed on the applicant has a non-parole period of 18 months. In the context of his criminal record that represents a very significant period of supervision. He has not been conviction free for such a period for over twenty years. His circumstances were such that, absent some compelling evidence of which none was presented, there was nothing to suggest that if a longer period of parole was imposed it was likely to result in him having improved prospects of rehabilitation (see Jinnette v R [2012] NSWCCA 217 at [102] to [108] per Johnson J; Beale v R [2015] NSWCCA 120 at [68] to [69]).

Conclusion

I would reject the sole ground of appeal.
I propose the following orders: 1. The application for leave to appeal against the sentence imposed on 24 July 2013 be allowed; and 2. The appeal be dismissed.

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: 17 July 2015

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