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[2004] VSC 524
Supreme Court of Victoria
2004-12-16
WILLIAMS J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - reliance upon pre-sentence report in sentencing - failure to provide pre-sentence report to offender before sentence - whether denial of procedural fairness.
1 The plaintiff has made a number of applications by originating motion seeking relief under Order 56 of the Supreme Court (General Civil) Rules 1996 in the nature of certiorari quashing sentencing and other orders made by the County Court of Victoria at Melbourne on 1 September 2004 ("the sentencing orders").
2 The first defendants named in the originating motions were all represented before me by one member of counsel and I will refer to them collectively as "the first defendants". The second defendant made no submissions and agreed to abide the outcome of the application.
3 The sentencing orders included compensation and forfeiture orders and orders imposing a total effective sentence of 15 months and 7 days' imprisonment upon the plaintiff which mirrored orders made by the Magistrates' Court at Sunshine on 25 June 2004. However, the plaintiff had succeeded in his appeal to the extent that the non-parole period set by the Magistrates' Court had been reduced from 10 to eight months by the County Court.
4 The sentencing orders were imposed in relation to the plaintiff's convictions of offences of theft, receiving, handling and retaining stolen goods, trafficking, possession and use of heroin, stealing from shops, possessing a controlled weapon, assault with a weapon and failing to answer bail.
The issue
5 The sentencing orders were challenged on the basis that the learned sentencing judge had failed to accord procedural fairness to the plaintiff by failing, before making them, to provide him or his legal representative with a copy of a report assessing him as an unsuitable candidate for a youth training centre order under s 32 of the Sentencing Act 1991 ("the Act"). The court was said to have breached the audi alteram partem rule which requires that a party be given notice and a fair opportunity to be heard. Other grounds for the relief sought stated in the originating motions were not pursued.
6 The first defendants argued that there had been no such failure in all the circumstances, and, that if there had, the plaintiff had waived his rights by failing to take the point at the time. Alternatively, the first defendants argued that the relief sought should be refused in the exercise of the Court's discretion, because the plaintiff would fail to persuade the court of his suitability for a youth training centre order if the matter were to be remitted for a further hearing of the plea.
Background
7 The plaintiff was born on 1 August 1984 and was aged 20 on 1 September 2004 when the sentencing orders were made. Accordingly, he was under the age of 21 years at the date of sentencing, and, as a "young offender" within the meaning of the definition in s 3 of the Sentencing Act 1991 ("the Act"), eligible for an order under s 32 of the Act, detaining him in a Youth Training Centre ("a youth training centre order").
8 S 96(2) of the Act required the court to obtain a pre-sentence report if considering making a youth training centre order, in order to establish both the plaintiff's suitability for the order and whether the necessary facilities existed. The report was required to be filed with the court, under s 98(1), and distributed to the prosecutor and the legal practitioner representing the plaintiff "a reasonable time before sentencing [was] to take place", under s 98(2). It was common ground that the pre-sentence report had been provided to the court, but had not been distributed to either the prosecutor or the plaintiff's representatives.
9 S 99 of the Act provided a mechanism for a notice to be filed by either the prosecution or the defence disputing the report. If a notice of intention to dispute the report were filed, s 99(2) provided that the court should not take the whole or any part of the report into consideration when determining sentence, unless the party filing the notice had been given the opportunity to lead evidence about disputed matters and to cross-examine the author of the report on its contents.
10 During the plea made by counsel for the plaintiff in the County Court on 23 July 2004 reference was made to a report from Mr Bob Ives, a psychologist, who had assessed the plaintiff as having "limited intellectual capacity, limited personal resources ... and dysfunctional aspects of his personality" in the context of his use of drugs, including heroin. Mr Ives had reported having found that the plaintiff's test results indicated a very low level of intelligence which, in his opinion, warranted his referral to the Disabilities Branch of the Department of Human Services for assessment to ascertain if he was a person suffering from an intellectual disability under relevant State legislation.
11 The learned judge interrupted the plea by indicating that he would be seeking to have the plaintiff assessed for suitability for a youth training centre order. He told counsel that he had it in mind to sentence the plaintiff to between nine and 12 months' detention, which his Honour explained, should mean that the plaintiff would be free in about 5 months. Counsel for the plaintiff submitted that the sentences should be concurrent and, therefore, shorter than that indicated by his Honour. She told the court that she would make further submissions, once the assessment had been completed.
12 The plaintiff's affidavit in support of his application sworn on 28 October 2004 states that the matter was mentioned on 30 July 2004. He was not present and the matter was adjourned to 1 September 2004 because the assessment by Juvenile Justice had not been completed. The plaintiff's affidavit relevantly states that he was informed that his counsel had organised for the matter to be mentioned at the County Court on the morning of 30 July 2004. At about 11.00 am on that day she had arrived at the court and had been asked for an explanation for her late appearance. The affidavit continues:
"She apparently explained to the Judge that she was new in the Jurisdiction and had to do research and consult her seniors about my case."
The County Court appeal on 1 September 2004
13 The plaintiff deposed to having told his counsel on the morning of 1 September 2000 that he had been assessed as suitable for detention in a Youth Training Centre. He went on to state:
"My counsel advised me that she has not seen the report but will see it as soon as the Judge releases it (sic)."
14 It was common ground that the hearing resumed on 1 September 2004. Immediately after appearances had been given, the learned judge asked the plaintiff to stand up and began to sentence him. He told the plaintiff that counsel were aware that he had been assessed as unsuitable for a youth training centre. He went on to state that he would allow the appeal to some extent. At that point his Honour interrupted the delivery of the sentence to send for his spectacles. The prosecutor then advised his Honour that he had not received a copy of the assessment report and was not aware of the results. His Honour said that it would be made available. Counsel for the plaintiff then said that she would appreciate a copy. There was an interval of approximately one and a quarter minutes of silence, followed by discussion as to the number of days to be declared as time already served by way of pre-sentence detention. There was a further interval of silence before his Honour's spectacles were brought into the court. At that point, copies of the pre-sentence report were provided to counsel by the tipstaff. His Honour then repeated that the plaintiff had been found unsuitable for detention in a youth training centre and then stated that he would allow the appeals in part. He pronounced the sentencing orders. The affidavit of Adrian Mark Castle of the Office of Public Prosecutions sworn on 18 November 2004 describes the exchange between his Honour and the plaintiff which followed:
"[His Honour] 'And now Mr Le or Mr Hung or whichever way it might well be, you've got a drug problem and the authorities are well aware that you have got a drug problem and I'll just give you a warning that you are being watched while you are in custody. You understand that?"
The plaintiff answered, 'yes'.
[His Honour]'It is up to you what you do. You're a young man. One of the reports says that you are quite an intelligent man and there is no reason why you can't make a life of yourself, for yourself. In all probability, you won't take any notice of anything I say so I won't waste my breath any further'."
15 After counsel for the plaintiff had advised that the declaration of pre-sentence detention was incorrect, His Honour corrected the declaration and the court was adjourned.
Relevant authorities
Procedural fairness
16 The content of the obligation to accord procedural fairness depends upon the circumstances of the case.[1] Ormiston JA in R v Wise[2] stated that an objective test should be applied to determine whether a fair hearing had been given and that the "better view" was that failure to accord natural justice might arise in the absence of fault on the part of the decision maker.[3] His Honour referred to the applicable "fundamental principle that justice must both be done and be seen to be done".[4] In Wise, as in this case, it was accepted that the sentencing judge had no intention to act unfairly. As in R v Klubal[5], there was also no suggestion that the report was deliberately withheld by his Honour.
17 Senior counsel for the first defendants referred the Court to decisions dealing with the obligation of administrative bodies to accord procedural fairness.[6] Counsel for the plaintiff relied upon a number of authorities dealing with situations in which criminal courts had failed to disclose material relied upon in sentencing. He referred, in particular, to the strongly worded statement by the Full Court in R v Carlstrom[7] when considering an application for leave to appeal from a sentence imposed after a sentencing court had received a psychiatric report, which was relied upon but not shown to the applicant's legal advisers:
"The failure to make this material available to the applicant's advisers produced a very unsatisfactory state of affairs which, we trust, will never occur again. It is fundamental that, save in exceptional circumstances, counsel for a prisoner should have an opportunity of seeing and commenting upon any material which is provided to the trial judge, although in some cases it may be necessary to obtain from counsel an undertaking not to disclose, for instance, a psychiatric report to his client. If there be a case in which the judge thinks that, for some exceptional reason, a report or some part thereof should not be made available to a prisoner's legal advisors, the trial judge should tell them that he has it and should give most explicit reasons for not allowing them to see it."[8]
18 In R v Austin[9] the Court of Appeal of this Court considered an appeal against a sentence imposed by a judge who, without notifying the appellant of his intention to do so, had obtained a report to determine his suitability for a combined custody and treatment order. The judge had proceeded to sentence the appellant, without having advised counsel of the report's existence. Winneke P, with whom Charles and Vincent JJA agreed, cited R v Wise[10] and the Court of Criminal Appeal's decision in Hogan[11] when describing what had occurred as "a breach of the rules of fairness"[12].
Waiver
19 It was submitted by the first defendants that the plaintiff had waived his right to rely upon any denial of procedural fairness by what amounted to acquiescence by his counsel's failure to take any appropriate action to address the situation by seeking time to read the pre-sentence report, to obtain instructions, to arrange to call evidence to dispute the contents of the report or to seek to cross-examine its author. Senior counsel for the first defendants referred generally in this regard to the decision of Gobbo J in Moore v Guardianship and Administration Board[13]. In Moore there was held to have been a breach of the hearing rule even though parties had failed to avail themselves of an opportunity to view a report which had been provided to the Guardianship and Administration Board and which his Honour considered contained "much in the way of unsupported suspicion and little if anything in the shape of hard proof"[14]. However, senior counsel sought to distinguish the present situation on the basis that the plaintiff was represented by counsel in the County Court, whereas the plaintiff in Moore had been represented by a friend who would appear not to have had legal qualifications. The first defendants also sought to rely upon the decision of Gillard J in SBA Foods Pty Ltd v VWA[15] refusing an application for judicial review on the basis that the applicant had been represented by experienced lawyers who had participated in the challenged process without requesting a copy of the subject report until after the decision had been communicated to them. Gillard J held that the submission that the applicant had been denied procedural fairness by being denied access to the report lacked reality[16].
20 The issue of waiver and election was discussed by McInerney J in R v Liliydale Magistrates' Court[17]. His Honour summarised the authorities canvassed and concluded:
"I think the ultimate question is whether on the whole of the facts the applicant is entitled to certiorari and I think this is particularly true where the challenge to the order is based on an allegation of a denial of natural justice. In such a situation the Court might well look to the overall question of the justice of the whole situation."[18]
21 Counsel for the plaintiff sought to rely upon what he asserted was the relative inexperience of counsel representing his client in the County Court, when arguing that there had been a denial of natural justice despite her failure to interrupt proceedings to seek the opportunity to respond appropriately to the pre-sentence report. This inexperience was also relied upon in response to the waiver argument.
22 Senior counsel for the first defendants replied that the plaintiff had failed to adduce any evidence from counsel herself and he noted that the evidence as to inexperience lacked specificity. He submitted that it should be viewed as having little or no weight. However, I note that no relevant evidence was given by the first defendants.
Conclusion
23 In my view, in all the circumstances, there was a denial of procedural fairness in the hearing of the appeal and the first defendants have not persuaded me that the plaintiff waived his right to rely upon that breach of the principles of natural justice. As the authorities make clear, each case turns on its own circumstances, and I am satisfied that the procedural unfairness in this case vitiated the sentencing orders.
24 I am not persuaded that relief should be denied in the exercise of the Court's discretion because of any likelihood as to the outcome of the remission of the matter. In my view, it is not a foregone conclusion that the plaintiff would fail to persuade a court as to his suitability for a youth training centre order, as was argued by the first defendants. I will not comment further in relation to the matter.
25 The sentencing orders should be quashed and the proceeding should be remitted to the County Court for hearing and determination according to law.
[1] Kioa v West (1985) 195 CLR 550 at 584 per Mason J.
[2] [2000] VSCA 169; (2000) 2 VR 287.
[3] [2000] VSCA 169; (2000) 2 VR 287 at 293-4.
[4] citing: _Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492-3_per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
[5] (Unreported) Court of Criminal Appeal 9 August 1989.
[6] Moore v Guardianship and Administration Board & Anor [1990] VicRp 80; [1990] VR 902; Courtney v Peters [1990] FCA 526; 98 ALR 645; Ranginui v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1280; Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088; (1998) 86 FCR 483; SBA Foods Pty Ltd v Victorian Workcover Authority [2001] VSC 276.
[7] [1977] VicRp 44; [1977] VR 366.
[8] [1977] VicRp 44; [1977] VR 366 at 367 per Young CJ, Menhennitt & Kaye JJ.
[9] [2002] VSCA 138; (2002) 132 A Crim R 537.
[10] [2000] VSCA 169; (2000) 2 VR 287
[11] Court of Criminal Appeal (Vic), unreported, 2 December 1993
[12] (2002) A Crim R 537 at 538
[13] [1990] VicRp 80; [1990] VR 902 at 912 and generally
[14] [1990] VicRp 80; [1990] VR 902 at 911
[16] [2001] VSC 276 at [260].
[17] [1973] VicRp 10; [1973] VR 122.
[18] [1973] VicRp 10; [1973] VR 122 at 135.
Le
Collins [2004] VSC 524
(1985) 195 CLR 550
(2000) 2 VR 287
(2000) 201 CLR 488
(1998) 86 FCR 483