REGINA v. PHILP [1999] NSWCCA 253

COUNSEL : Crown: L.M.B. Lamprati App: P.J.D. Hamill SOLICITORS : Crown: S.E. O'Connor App: Western Aboriginal Legal Service Limited CATCHWORDS : Sentencing - deferred sentence - relevance of good conduct during lengthy remand - terms of recognisance - error as to length - error as to inappropriate terms - inappropriate to require supervision for whole term unless Probation Service deem it necessary - inappropriate to impose term unrelated to offence, controlling offender's private life - inappropriate term as to place offender could consume alcohol - such term inconsistent with offence and record - remarks as to call up on recognisance inappropriate as suggesting pre-judgment and lack of impartiality - role of judge and prosecutor in sentencing proceedings - patronising and hostile attitude inappropriate - necessity for objective detachment and dispassionate assessment on sentencing. ACTS CITED : Crimes Act 1900 Macpherson v. Beath (1975) 12 SASR 174; Harvey (1989) 40 A. Crim R. 102; CASES CITED: Chow v. Director of Public Prosecutions (1992) 28 NSWLR 593; Davis (1984) 3 NSWLR 572; Gibson v. O'Keefe (Einstein, J., 20 May 1998) DECISION : Appeal upheld

No. 60157 of 1999 CORAM: WOOD, CJ. at CL. GREG JAMES, J. MONDAY 16 AUGUST 1999

1 WOOD, CJ. at CL: I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: Leave to appeal is sought in respect of the sentencing order of his Honour Judge Mahoney on 18 March 1999 in the District Court at Broken Hill for the applicant's offence of assault occasioning actual bodily harm. The applicant had been found guilty of having committed that crime on 5 July 1996 after a jury trial in which he was acquitted of a more serious charge. He had been on conditional liberty on terms during the intervening two years and nine months. 3 His Honour deferred passing sentence upon the applicant entering into a recognisance in the sum of $2,000 to be of good behaviour for five years on condition that he:- "1. Pursue TAFE course in literacy and numeracy. 2. Not to consume legal intoxicating substances in any licensed premises (hotels, clubs, beer tents at racecourses, showgrounds or the like) during the period of the recognisance. 3. To place self under the care and supervision of Victorian counterpart of Probation and Parole Service and accept all recommendations from that Service. 4. To give effect of condition No 4, to report to the Broken Hill Probation and Parole Office by 12 noon Friday 19 March 1999 and order to report to the Mildura office of the Victorian Department when directed to do so by the Broken Hill Probation and Parole Office." 4 At the time of the offence the applicant was on a recognisance under s.558 of the Crimes Act to be of good behaviour for 12 months and not to assault or molest the victim of that offence. Subsequently, during the period October to December 1996, the applicant had been convicted of assaults for which he had been fined and ordered to perform a total of 150 hours community service. There appears to be no criminal record since. 5 His Honour sentenced on the basis the offence was committed by the applicant by having slapped the victim once giving her a fat lip at a time when she was "smashed out of her mind with marijuana and alcohol". 6 His Honour referred to the offence as cowardly in the context of the difference in the parties physical stature and notwithstanding the victim had kicked the applicant in the head, his Honour said:-

"I want to make it abundantly clear that I think it was appalling behaviour to have accepted her hospitality, to go to her party knowing - and I will use the everyday expression - she must have been smashed out of her mind with marijuana and alcohol. She looks to me to be about six and a half or seven stone all up. You are a six foot fellow, playing in the centre for the Menindee Yabbies. You ought to be absolutely disgusted with yourself for having done that. If you had done that to the halfback from Wilcannia you would have got your marching orders off the field and rightly so. It was cowardly, and even if she did kick you in the head you told the jury it did not cause any harm. It is absolutely appalling to see males bashing up females." 7 During his Honour's remarks on sentence, it became clear that his Honour was proposing to defer the passing of sentence conditioned upon the applicant entering a recognisance. In discussing the applicant's activities during the interim his Honour said:- "Now, you have been lucky, because this trial has been hanging fire for two and a half years. In that two and a half years you have cleaned up your act. You have done all the beaut things to come up smelling sweet as a rose in front of the court. You are back with your wife. You say you are looking after your children. You are working in TAFE holidays. You are pursuing courses." 8 His Honour then turned to the consequence of any breach of the recognisance he was minded to impose, introducing what he said concerning such a recognisance with the following remarks:- "Don't let me stop you doing that, but just understand this, that you had better keep on doing that for the next five years because I do not retire until the year 2010 and I will be around." 9 After setting out the terms of the recognisance his Honour was minded to direct, his Honour continued, when dealing with the prospect of any breach, as follows:- "That recognisance means that if at any time during that recognisance you break the law, you are liable to be brought before me and to be dealt with according to law. Any such breach will be referred to me in the first instance and I want you clearly to understand that if it is at all humanly possible if you break this bond in the next five years, I want you brought back in front of me. If you are, Ms. McSpedden (applicant's trial counsel) can talk till she is blue in the face and it will not stop me from putting you in gaol on the basis of what the jury has convicted you of on this occasion. Is that abundantly clear to you?" 10 The prisoner replied "Yes". 11 His Honour then turned to conditions he proposed to place on the bond in addition. Those conditions I have already set out. In respect of the condition that the applicant not consume legal intoxicating substances in licensed premises, his Honour made the following remarks:-

"I am not saying you cannot drink. You can drink at home, perhaps somewhere where your wife can put the brakes on you, but you must not drink in licensed premises ..." 12 It is submitted that his Honour fell into a number of errors. Firstly, it is contended that he erred as to the length of the recognisance - five years from 18 March 1999 - particularly in the context that the applicant had been on conditional liberty for two years nine months prior to coming forward for sentence and in the context of the conditions his Honour had imposed which extended for the whole term of the recognisance. 13 Secondly, it was contended that the conditions of the recognisance were inappropriate and overly onerous, having regard to the offence and to the lapse of time since the commission of the offence. 14 It is common ground that the applicant's occasional outbursts of violence leading to the offences I have referred to, including the offence for which his Honour was passing sentence, arose in the context of his consumption of alcohol. The offences were commonly committed against his domestic companion. In that context the condition as to consumption of alcohol, in the context of his Honour's remarks that I have previously set out, is peculiar to say the least. 15 The condition making mandatory the applicant's continued attempts to obtain literacy was inappropriate and reflected poorly upon the intervention his Honour had made about the applicant's attempts to gain literacy during the Crown's cross-examination of him during the sentencing proceedings. Such a condition is open to the criticism expressed by Bray, CJ. in Macpherson v. Beath (1975) 12 SASR 174 at 181 where his Honour said:-

"I have more than once deprecated the tendency to insert unusual conditions into recognisances designed to control the defendant's private life in contexts only indirectly related, if at all, to the crime for which he is being punished. I have allowed appeals against such conditions: see Neil v. Steel ; Baddock v. Steel . To my mind they tend to favour of excessive paternalism and in extreme cases of tyranny. I realise that views differ on this matter, but mine are strongly held." 16 The length of the recognisance parallels the length of the maximum sentence of imprisonment provided by law for the offence. His Honour gives no particular reason for such a lengthy term and as well as extending the other conditions for the whole term requires Probation and Parole supervision for the whole term. Such a term is inconsistent with his Honour's finding that the applicant came forward for sentence, having "cleaned up his act" and "smelling sweet as a rose in front of the court". 17 In both contended respects, I conclude that his Honour fell into error. The range and the conditions of the recognisance were needlessly onerous: see Regina v. Harvey (1989) 40 A Crim R 102. 18 In my view supervision should only continue for as long as the Service deems it necessary and its expertise should enable it to deal with alcohol and anger management. I see no particular need for a condition that the applicant attend TAFE in a recognisance which, in my view, should be imposed. I cannot leave the matter without noting certain of his Honour's remarks and the manner of cross-examination of the applicant on the sentence proceedings. These trouble me greatly. Many of the remarks were disparaging and patronising. Despite objection, the Crown Prosecutor was permitted, indeed encouraged, to cross-examine in an overtly hostile fashion. His Honour's interventions would only have carried the impression of hostility on his part also to an impersonal independent bystander. His Honour's observations as to what he would do if the applicant breached the recognisance display an ominous fixity of attitude and a lack of impartiality to that bystander. 19 As much as at a trial, judicial detachment and objectivity in sentencing need to be clear: see the remarks of Kirby, P. in Chow v. Director of Public Prosecutions (1992) 28 NSWLR 593 at 606A-B, 608E-G, 612C-E. The observations of Street, CJ., with whom Slattery, CJ. at CL. and Wood, J. agreed, in Regina v. Davies (1984) 3 NSWLR 572 and the principles from the cases cited by him at 574 to 575 are also apposite, as are those of Wood, CJ. at CL. with whom James and Adams, JJ. agreed in Regina v. Esposito (CCA, unreported 20 November 1996 at 43 to 50). 20 Such an attitude as is here shown to have been displayed towards a party in litigation can suggest a lack of impartiality which undermines the necessary public confidence in the fairness of the judicial process. See the discussion by Einstein, J. in Gibson v. O'Keefe (unreported 20 May 1998). 21 In the view that I have formed, it is not necessary for me to decide why it was that his Honour fell into error, nor whether there was other legal error than that contended, notwithstanding my disquiet at what appears in the transcript. It is sufficient that I note the matters I have referred to and my conclusions that his Honour did err in the result. 22 I would propose leave be granted, the appeal upheld and his Honour's order below be quashed. In lieu, sentence be deferred upon the applicant entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of a further two and a half years (which will mean the applicant will have been at conditional liberty for a total of five years and will have been on recognisance for three years for this offence) and that the recognisance be conditioned that the applicant come up for sentence if called on. The recognisance is to be further conditioned that he place himself under the care and supervision of the Victorian counterpart of the Probation and Parole Service for as much of the term of the recognisance as that Service deems appropriate and obey all reasonable directions and observe all reasonable requirements of that Service including particularly with regard to the use of alcohol and appropriate counselling for alcohol abuse and anger management. 23 Any failure to observe these directions or requirements, particularly as to attending such counselling, will constitute a breach of this recognisance. 24 The applicant is to report to the Broken Hill office of the Probation and Parole Service on or before 5.00 pm Monday 23 August 1999 and report as directed to the appropriate office of the Victorian Department. The recognisance may be entered before a Magistrate within seven days from today. 25 I direct a copy of the recognisance be faxed when it is executed to the Broken Hill office of the Probation and Parole Service. 26 WOOD, CJ. at CL: I agree with the orders proposed by Justice Greg James and with the reasons therefor. 27 I similarly share his Honour's concern in relation to the somewhat aggressive manner in which the cross-examination was pursued, and allowed to continue, and with certain of the observations by his Honour during the proceeding in relation to sentence. 28 The impression left on the papers is one of distinct hostility towards the applicant, and of threatened retribution should he be called up for breach of the recognisance. 29 For example, in the reasons for sentence his Honour observed:- "Now, you have been lucky, because this trial has been hanging fire for two and a half years. In that two and a half years you have cleaned up your act. You have done all the beaut things to come up smelling sweet as a rose in front of the Court. You are back with your wife. You say you are looking after your children. You are working in TAFE holidays. You are pursuing courses. Don't let me stop you doing that, but just understand this, that you had better keep on doing that for the next five years because I do not retire until the year 2010 and I will be around ... Any such breach will be referred to me in the first instance and I want you clearly to understand that if it is at all humanly possible, if you break this bond in the next five years, I want you brought back in front of me. If you are, Ms. McSpedden can talk till she is blue in the face and it will not stop me from putting you in gaol on the basis of what the jury has convicted you of on this occasion. Is that abundantly clear to you?" 30 Examples of the less than dispassionate, and somewhat patronising, manner in which the sentencing proceedings were conducted include additionally the following passages in the course of the cross-examination of the applicant:- "Q. Since that time you've been back in the Mildura area, what do you say to his Honour about your consumption of alcohol? A. I haven't drunk since then. Q. During the time between 1994 and 1996 when you attracted these criminal convictions mainly in relation to assaults, were you drinking alcohol on a regular basis? A. No, only on weekends. Q. And any other time? HIS HONOUR: I am going to give such weight to answers to leading questions as I think they deserve to be given, Miss McSpedden.

HIS HONOUR: You can waste as much time asking them as you like ... … Q. Now look, let me just make this abundantly clear to you Mr. Philp, my task at the moment is to try and weigh up what sort of a fellow you are? A. Yeah. Q. And weigh up whether or not you ought to go to gaol or whether you ought to be allowed out with a lighter sentence than a gaol sentence? A. Yes. Q. Do you understand that? A. Yes. … Q. And the way things are shaping up --? A. Yes.

Q. -- you look like you're heading for the gaol house, do you understand that? A. Yes.

HIS HONOUR: Q. You better listen to what your barrister says-- A. Yes.

Q. -- when she has a talk with you in company with your solicitor over the course of the next half or so. A. Yes.

HIS HONOUR: Ms. McSpedden, if there is any medical or psychological explanation for what appears on the face of it to be out and out cussedness on your client's part, I expect to hear about it and I will accept a fax report or certificate from any source that you can get it from.

HIS HONOUR: Ms. McSpedden, I have the distinct impression that this young man is trying to work the system. If he can remember enough about rules of Rugby League to play for the centres with Menindee Yabbies, no doubt he can remember who they're playing next week and who they played last week in the season, I find it absolutely impossible to accept, unless there's some medical reason, that he is telling the truth when he says he cannot remember these things that he's saying.

Q. Right, step down, you can leave the witness box, you're on bail between now and the time you come back to court and I suggest that you have a good long hard look at yourself. A. Mm.

Q. You've got to stand up and be a man here. A. Yes.

Q. Is that understood? A. Yes. … HIS HONOUR: Q. Do you understand that I am trying to understand and find out what's going on inside your mind, do you understand that? A. Yeah. Q. And do you understand that on a scoreboard at the moment you are about none out of ten? A. Mm. Q. Do you understand that ? A. Yes. Q. You know what a scoreboard is don't you? A. Yeah. … Q. The year before that, 1997, did you play for the Menindee Yabbies the year before you went to Victoria? A. Yeah. Q. Played in the centres? A. Yep. Q. Whereabouts did you go playing, Menindee where else? A. Broken Hill, Wilcannia. Q. Only in those three towns? A. Yes. Q. How many games in the season? A. I can't really say. It's all changed. Q. Well have a bit of a guess, did you count it on one hand or would you need two hands to count it? A. About 11 games." 31 It is somewhat surprising that the sentencing proceedings should have progressed in this fashion, in circumstances where the offender was a young illiterate Aboriginal man, who had managed to avoid further offending during the two years and nine months that had elapsed since the offence. During that time he had returned to his wife, was caring for his children, was pursuing educational courses, and was working in the TAFE holidays. In these ways he had demonstrated positive signs towards rehabilitation. 32 Justice is not served by the conduct of sentencing proceedings other than in a calm and detached fashion. Care is needed to avoid expressions indicative of personal exasperation and even more so, to avoid threats that a sentencing judge will ensure that the offender is brought back before him or her in the event of any breach of a recognisance so that the offender can then be sentenced to imprisonment. It would be difficult in the present case, for the applicant to assume other than that any such appearance before his Honour has been pre-determined, in the light of the remarks made. That appears to me to be a highly undesirable course. 33 The order of the court will be as proposed by Justice Greg James.

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