R v Sonnet

2 As stated in a previous ruling of R v Evangelos Goussis,[2] on a similar application, the law in respect of apprehended bias is well established.[3] It was described by the High Court in Ebner v Official Trustee in Bankruptcy [4] per Gleeson CJ, McHugh, Gummow and Hayne JJ in the following terms:

"Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror) . . . , the governing principle is that, subject to qualifications relating to waiver . . ., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide."

3 That test reflects "the importance of maintaining public confidence in the administration of justice and its capacity to ensure that cases are decided impartially".[5]

4 Although counsel for the accused did not specifically refer to all of the cited cases, counsel did rely upon the law contained in my earlier judgment of Goussis as being a correct interpretation of the law. Accordingly it is appropriate to simply restate some of those matters. In Reg v Watson ex-parte Armstrong[6], the court at p.263 stated

"It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case they cannot have confidence in the decision. To repeat the words of Lord Denning Master of the Rolls which have already been cited, justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking the judge was biased."

5 The trial is due to commence following various rulings that are sought, of which this is the first. The trial of Mr. Sonnet will be heard and determined by a jury, on the basis of admissible evidence, not by the Judge, and that much is acknowledged by all parties.

6 Although not specifically stated, it would appear that counsel for Mr. Sonnet also relied upon a decision of the New South Wales Court of Criminal Appeal in the matter of Branko Balic (No2)[7]. In that case a solicitor, who was in the chambers of a Judge examining exhibits, overheard another Judge who was to preside over a particular case say to a Judge that he intended to revoke the bail of the accused man prior to the trial commencing. The accused had been on bail for some four years at that stage. This information was relayed to the accused and his counsel prior to the matter commencing. When the matter was called on, the trial Judge then proceeded, without any application by the Crown, to revoke the bail of the accused man. His Honour provided no reasons for the revocation of the bail. Subsequently an application was made for the Judge to disqualify himself from proceeding with the trial on the basis of actual or perceived bias, which was refused. The basis of the application was that the remarks were capable of being interpreted by, both the accused and the public, as a pre-judgment, and thus could reasonably give rise to an apprehension that the trial Judge had pre-judged the matter of bail and was thus incapable of being impartial in the trial.

7 On appeal the court held that once such a decision is so tainted, as they found it was in that case, the decision must be set aside. They further determined that a consequential effect of such a setting aside is that the accused, or fair minded members of the public, could reasonably hold the view that any subsequent trial, presided over by that Judge, relating to that accused, may not have the appearance of impartiality which is necessary.

"Here any decision as to guilt or innocence will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle, and sometimes imperceptible ways, a judge might influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge."

9 Counsel submitted, that in my sentencing remarks in the matters of Carl Williams and Gregory James Anthony Hildebrandt,[9] I made findings of fact that were beyond what was required for the sentencing of either Williams or Hildebrandt and, which would have indicated to a fair minded lay observer, that I had determined that the accused Sonnet was guilty of the conspiracy to murder Mario Condello. In respect of each matter, I was sentencing the offender for being part of the same conspiracy to murder Mario Condello, with which the accused Sonnet stands charged.

10 In respect of the plea of Williams, the Crown put before the Court a summary of the factual material they said was relevant, in relation to the charges to which he had entered a plea of guilty. A copy of this material had been provided to counsel for Williams earlier, and certain of the parts were disputed by him. He gave evidence upon the plea, as to those matters that he disputed, and one of the disputed matters related to the conspiracy to murder Mario Condello, with which the accused man is charged.

11 That disputed area of fact was, what was said by Michael Thorneycroft, who had pleaded at an earlier stage, made statements and given evidence at a committal in respect of the accused Sonnet, Williams and Hildebrandt.

12 Williams, indicated in his evidence, in the course of the plea, that the arrangements for the murder were made with the accused Sonnet, but he disputed, that there was any agreement to make any payment for that planned murder. He stated, that the accused Sonnet came to an agreement with him to murder Condello, because Condello had put a contract out on his life. He further stated, that it was not only his life but that of his father and another person, adding at a later stage 'who knows who the third person is whose life is in danger'.

13 Accordingly, I had to determine, for the purposes of sentencing Williams, whether there was any payment to be made for the killing, if the killing eventuated. There is no doubt that if a substantial sum of money is to be paid to ensure that a person is to be murdered the criminality is at a high level as it is clearly defined as a contract killing, rather than a peremptory strike, or in the heat of the moment. Having examined the material available, which included intercepted material of conversations involving the accused Sonnet and Thorneycroft and the evidence of Williams and Thorneycroft on this issue, I determined that I was satisfied to the required standard, that a promise or offer of money had been made by Williams. That is the complaint in relation to the sentencing remarks of Williams.

14 In relation to the sentence of Hildebrandt, once again, the Crown put before the Court, a summary of the factual material they said was relevant in relation to the charge to which he had entered a plea of guilty. A copy of this material had been provided to counsel for Hildebrandt, and a part of that summary was disputed by his counsel. The current complaint relates to the finding of fact, on his sentence, that some days prior to the arrest of Sonnet and Hildebrandt, Hildebrandt was holding a gun on behalf of the accused Sonnet. Once again, this was a matter agitated by counsel for Hildebrandt, as a result of the outline of the Crown case presented against his client. I determined, on the available material before me, that Hildebrandt was holding a gun on behalf of the accused man Sonnet, but I was not satisfied to the required standard, that it was either of the guns found in the possession of Sonnet, at the time of his arrest.

15 Further, in relation to the sentencing remarks of Hildebrandt, it was submitted that it was unnecessary to make any comment as to his relationship with the accused Sonnet. In respect of that matter, it is my opinion that it was necessary to determine the prospects of rehabilitation of Hildebrandt as part of the sentencing process. The evidence given before me by his mother and a long term friend, was that the involvement of Hildebrandt in a crime of this nature was totally out of character, it was equally inconsistent with his previous convictions which were of a minor nature. His mother gave evidence, that the accused Sonnet was a long term friend of Hildebrandt, having grown up as neighbours and school friends. She further said, because of the trouble that the accused man had been in, and his influence over Hildebrandt, that she had barred Sonnet from her home.

16 Accordingly I was satisfied that the prospects of Hildebrandt for rehabilitation were reasonable, provided that he no longer associated with persons such as Williams and Sonnet in the future. Complaint is also made that I made a reference to a 'bizarre admiration for Sonnet and Williams'. That was made in the context of his oft repeated desire to meet Carl Williams, as recorded on the listening devices via telephones and cars, and was a part of the fact finding in respect of his prospects of rehabilitation. That was based, not on the view that either of them was guilty of this crime, but on the matters known about Williams and Sonnet at the time of Hildebrandt making the statements about wishing to meet Williams. At that time, the accused man Sonnet had convictions for multiple armed robberies, possession of guns, and drug offences, whilst Williams was consistently appearing in the press as being a gang lord, controlling a large drug trafficking network, and related to the various murders that had been occurring earlier. The description of a 'bizarre admiration' reflects the view that persons who are usually admired, possess different qualities to those the subject of his admiration.

17 All of this is claimed to demonstrate, that a fair-minded lay observer might reasonably apprehend that, as the Judge, I might not bring an impartial mind to the resolution of the question or questions that I am required to decide. Those matters will relate to questions such as admissibility of evidence, directions to the jury and others that may occur as the trial progresses.

18 The Crown submitted in reply that the findings of fact complained of were both necessary and appropriate in the sentencing process. During discussions with counsel for the Accused, counsel appeared to concede that the matters having been raised by counsel for the prisoner during the pleas, were matters that I had to determine, although there seemed to be some argument, that they were raised unnecessarily by counsel.

19 I agree that the matters on which I made findings of fact, were matters that were necessary to the resolution of sentence, in light of the manner in which the pleas were conducted. I do not accept that any of the remarks were gratuitous.

20 The Crown submitted, that the fair-minded lay observer is not a totally ignorant observer. It is not one who is totally ignorant of the law, equally it is not one who is a trained lawyer. It is my view, that in determining what would be the view of a fair minded lay observer, that the fair minded lay observer is one who understands the role of the Judge in the sentencing and trial processes. That is not knowing or understanding everything related to the criminal law, but not totally ignorant of the role of the judiciary. It is that person who must then perceive, apprehend or reasonably suspect, that the sentencing remarks of the Judge demonstrate a bias or prejudgement of the issue, upon which that Judge is going to preside.

21 In relation to these sentences, one would expect, that a fair minded lay observer would read the whole of the sentencing remarks and note the references within firstly, the Williams sentence to:

1. The Crown opened the circumstances under which they say these crimes were committed, you elected to give evidence before me during which you disputed a number of those circumstances to which the Crown had referred. You were cross examined by Mr Horgan S.C. on behalf of the Crown as to some of those matters.
2. In relation to the task of fact finding, it is my view that it is not relevant to the sentence that I have to impose that I determine all of the issues that have been raised by you as being disputed. There are certain matters which are necessary to determine but also many that are clearly not relevant and will have no impact upon the sentence that I will impose.
3. I will refer to the objective facts that are not disputed in any way when I am referring to the circumstances of the murders and conspiracy. Any areas in which the matters are contested by you, and may have relevance to the sentence to be imposed, I will indicate and deal with specifically as I state those circumstances.
4. There are a number of matters to which the prosecutor referred which are part of the background material, but which do not particularly impact upon your sentence but do place the three murders and conspiracy to murder, to which you have pleaded guilty, in context. Accordingly, I will include some of those matters that I consider will be of assistance in comprehending the whole of the circumstances.

1. The Crown opened in this matter in some detail, and I shall also refer to it in some detail, as it is important to note not only the overall circumstances, but your particular involvement in it. Four people have been charged with this offence of conspiracy to murder Mario Condello. You are the second person to plead guilty, the other person being Michael Thorneycroft. The other two persons charged, Sean Sonnet and Carl Williams, are pleading not guilty.
2. The facts as presented in this case are....

23 In my view, it would be abundantly clear to any fair minded lay observer, that in each case I was dealing with the role of the person I was about to sentence, and the other remarks, as to the overall circumstances, were a reiteration of the undisputed view that was put forward by the Crown, as being those circumstances for the purpose of sentencing the offender with whom I was then dealing. (My emphasis.)

24 At no stage did Williams or Hildebrandt dispute that the accused man Sonnet was intended to be the shooter in respect of Mario Condello, neither did they dispute that they were a party to a conspiracy to murder Mario Condello with each other, Thorneycroft and the accused Sonnet. Indeed, their pleas of guilty were an admission of precisely those facts. Accordingly, for the purpose of sentencing each of them, there was no other basis upon which the court could deal with the matter.

25 As indicated at the commencement of my sentencing remarks, what occurred in respect of the disputed matters was, to state the matters which had been opened by the Crown and then refer to what parts of that were disputed by Williams or Hildebrandt. A determination was then made, in respect of the disputed material. if it was necessary for the purposes of sentencing.

26 As I said previously, fair minded observers do not take sentencing remarks, that occupy respectively 132 or 56 paragraphs and trawl through them to try and locate one aspect upon which, taken out of context of the rest of the sentencing remarks, may provide a potential argument in respect of perceived bias or similar. Fair minded observers read the remarks as describing the circumstance surrounding and explaining the reasons for the passing of a sentence upon an offender. In my view when the remarks are read in totality, it is clear that they relate to a description of the circumstances of the offending, to which Williams and/or Hildebrandt had pleaded guilty and for which one or the other was then being sentenced.

27 Equally, it should be noted, that it is common practice for the one Judge to deal with all related matters, one of the reasons being consistency of rulings and sentencing of co offenders. It is equally, not uncommon for those Judges to have to find or determine factual matters in relation to the involvement of one accused, as against another, prior to the hearing of a trial. Judges, have on many occasions, had to determine the particular role played, or the place in a hierarchy of a person who is pleading guilty and giving evidence on behalf of the Crown. This may well involve findings as to where other alleged co offenders were, comparatively in the hierarchy, or their role in the criminal enterprise. This is done prior to the trial of the co-offenders, and is considered normal practice in the courts. None of that fact finding demonstrates a bias or creates a perception of bias, it is part of the function of the Judges in their role as the sentencing Judge.

28 It is important that persons who plead guilty to offences are dealt with swiftly and the public is informed of the full circumstances of the offending. If applications of this nature were successful, the processes of the criminal law would be inevitably delayed, without any proper basis, other than a recitation of undisputed facts, or the resolution of some minor disputed facts, for the purposes of sentencing a co-offender. In my view, more is required to demonstrate to a fair minded lay observer that the Judge in the sentencing and trial processes, would be perceived, apprehended or reasonably suspected of a bias or prejudgement of the issue, upon which that Judge was going to preside.

29 For the foregoing reasons and applying the tests as outlined earlier, I do not accept that any fair minded lay person would perceive that I am biased in any way in relation to the forthcoming trial of Mr. Sonnet, and I would dismiss the application.

[1] R v Williams [2007] VSC 131, R v Hildebrandt, delivered 5 February 2007

[3] Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41, Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, Reg v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248

[4] [2000] HCA 63; (2000) 205 CLR 337

[5] R v Doogan [2005] ACTSC 74 para 9

[6] [1976] HCA 39; (1976) 136 CLR 248

[7] Branko Balic (No2) (1994) 75 A Crim R 515

[8] Branko Balic (No2) (1994) 75 A Crim R 520

[9] R v Carl Williams [2007] VSC 131, R v Hildebrandt, delivered 5 February 2007