R v Wise [2000] VSCA 169

R v Wise [2000] VSCA 169 - VSCA 2000 case summary — Zoe

[4]

Judge Rendit had made the original community based order for a period of two years upon a plea of guilty by the applicant and one co-offender to a joint count of attempted armed robbery. That order imposed conditions, among others, to perform 100 hours of community work over a 12 months' period, an obligation to submit to testing for drug use as directed by the regional manager and a condition not to commit another offence for which the applicant could be imprisoned during the time of the order. The facts revealed that, within two months of the imposition of that order, the applicant failed on 10 December 1997 to attend for drug testing as directed, that she committed the offence of driving under the influence of a drug on 27 February 1998, for which she was fined $300 on 10 February 1999, and committed the offences of both using and trafficking heroin between 7 and 19 May 1999. For those latter offences she was convicted in the Heidelberg Magistrates' Court on 22 March 2000 to be imprisoned for seven days on the driving charge and for two months on the drugs charges, each to be served concurrently and wholly suspended for a period of 12 months. On 5 June 2000 the applicant was brought before a different County Court judge ("the re-sentencing judge") in Melbourne by reason of the fact that by then Judge Rendit had become a reserve judge. The re-sentencing judge, after hearing a plea on her behalf, then imposed an order by which the applicant was sentenced for the count of attempted armed robbery to be imprisoned for 15 months, the period of six months being fixed as the period after which she would become eligible for parole. On a charge of breaching the community-based order she was fined $100. (Although it might have appeared that the present application was directed to that charge and fine, it was agreed that it was in fact directed to the re-sentencing order only, so that no question has arisen as to that fine, which stands unaffected by the orders made by this Court.)

[7]

On 25 September 1997 the applicant and her co-offender were brought before Judge Rendit for sentencing. She was by this time 21 and therefore is now 24 years old. Although Judge Rendit characterized the offence as both horrifying and serious, he was persuaded to extend leniency to the applicant partly because she was a first offender and partly because of some impressive evidence as to her attempts to rehabilitate herself despite her heroin addiction. From the whole of the evidence called, including that of the psychologist Mr Cummins, it appeared that the applicant had been affected by drugs since the age of 12, including marijuana, amphetamines and heroin. Some time after leaving school and doing only six months of a business and office administration course, her parents became aware of her heroin addiction. They secured her attendance at Warburton Hospital for rehabilitation for a six-week course but she stayed only five days, later obtaining re-entry to the course and successfully completing it. Two-and-a-half months' more rehabilitation took place at The Buttery in New South Wales at the end of which it was thought that she was drug-free. However at the beginning of 1995 she again succumbed to heroin and became an addict. Further drug rehabilitation took place in New Zealand during the latter half of 1996 at the Queen Mary Centre and again it was thought that she was successfully rehabilitated. That was not so and she met her co-offender to take the house at Dromana from which the offence was committed. Judge Rendit was therefore satisfied that at the time of the crime she was under the influence of drug addiction, so that he thought it appropriate to take that into account, inasmuch as her thought processes were affected by her craving for heroin. However the learned judge noted that her very addiction must have made her well aware of the horror and fear which would be caused to a victim by the threat of use of a blood-filled syringe, such that he was prepared to describe it as a "most despicable form of offensive weapon".

[25]

The present ground raises the question whether procedural fairness was afforded to the applicant or, in more old-fashioned language, whether the re-sentencing judge complied with the rules of natural justice. There are many aspects to that precept and those rules, but, even where the issue is limited, as it presently is, to a failure to disclose the contents of certain sentencing remarks, the ultimate issue is whether there has been a fair hearing, even if in many contexts the court does not enquire into the ultimate outcome but only into breaches of those rules, such as could fairly be expected to lead to a miscarriage. The test must in all cases be objective, and, although the matter was not argued before us, the better view would appear to be that there may be a breach of natural justice without fault being established on the part of the decision-maker.[1] Moreover, an objective test is consistent with the precept so frequently recognised by the courts, and only this month repeated in a joint judgment of five members of the High Court in Johnson v. Johnson[2] namely "the fundamental principle that justice must both be done, and be seen to be done". Doubtless this test has most frequently been applied in cases of apprehended bias but there is no reason to confine it and the present issue should therefore be resolved not by what the judge intended but whether or not it appeared that he had afforded both parties procedural fairness in the hearing of the application. By chance, in the procedure presently adopted for the hearing of criminal appeals, a report is required to be made by the judge at first instance so that reasons are not infrequently put forward for the taking of steps during the course of trial or sentencing which otherwise are not explicable on the face of the transcript of hearing or judgment. That fortunate and useful aid should not require this Court to embark upon a test of fault, unless it be relevant to the conduct of proceedings by either the prosecution or counsel for the defence. In the present case, no enquiry therefore need be embarked upon and no conclusion reached as to who was to blame for any appearance of unfairness.

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Before

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Judgment (48 paragraphs)

Parties