[2017] NSWCCA 326
Rae v R [2019] NSWCCA 284
R v Hura [2001] NSWCCA 61
Source
Original judgment source is linked above.
Catchwords
[2017] NSWCCA 326
Rae v R [2019] NSWCCA 284
R v Hura [2001] NSWCCA 61
Judgment (3 paragraphs)
[1]
Judgment
THE COURT: On 13 December 2018, Ali Samandi was sentenced by his Honour Judge Norrish QC to an aggregate sentence of 6 years imprisonment commencing on 23 February 2017 and expiring on 22 February 2023 with a non-parole period of 3 years and 9 months expiring on 22 November 2020. Mr Samandi had pleaded guilty to three counts of assault, six counts of assault occasioning actual bodily harm and one count of intentionally damage property. Mr Samandi was also sentenced to a wholly concurrent term of 5 months imprisonment for an offence of contravening an apprehended domestic violence order which was before the court on a s 166 certificate. The victim of these offences was Mr Samandi's wife.
Mr Samandi has now lodged an appeal against his conviction and sentence to this Court. He raises three grounds of appeal against his conviction and sentence respectively, principal among which is a complaint that counsel appearing for him in the sentence proceedings failed to follow instructions, with the result that there was a miscarriage of justice. Mr Samandi contends that he gave instructions to his lawyers to withdraw his plea but that those instructions were not followed. Mr Samandi's appeal is listed for hearing on 14 August 2020.
Mr Samandi applies for bail pursuant to s 61 of the Bail Act 2013 pending the determination of his appeal. Section 61 is in these terms:
61 Power to hear bail application if proceedings are pending in court
A court may hear a bail application for an offence if proceedings for the offence are pending in the court.
The power of this Court to grant bail is constrained by s 22 of the Act which is in the following relevant terms:
22 General limitation on court's power to release
(1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision -
(a) an offence for which an appeal is pending in the Court of Criminal Appeal against -
(i) a conviction on indictment, or
(ii) a sentence imposed on conviction on indictment,
(b)…
Samandi v Director of Public Prosecutions [2020] NSWCCA 102 | Case summary | Zoe
The s 22 "special or exceptional circumstances" test was dealt with in El-Hilli and Melville v R [2015] NSWCCA 146 at [10]-[29]. It was also considered in El Khouli v R [2019] NSWCCA 146 at [27] and [28]:
"[27] Secondly, where the ground of appeal is put forward in combination with other factors to demonstrate special or exceptional circumstances, the relevant criteria in assessing the merits of the appeal would appear to be whether the grounds relied upon by the applicant in the appeal were reasonably arguable or that there were reasonable prospects for the appeal.
[28] In El-Hilli, Hamill J stated that the applicable question, where the merits of the appeal are raised in combination with other factors to demonstrate special or exceptional circumstances, was 'whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success' (at [26]) (both descriptors are used intermittently in the consideration of the merits of the appeal of the applicant in that case (see at [45])). Reference was made in support of that approach in Peters v The Queen (1996) 71 ALJR 309 ("Peters") (at 310-311); Marotta v The Queen (1999) 73 ALJR 265; [1999] HCA 4 ("Marotta") (at 266) and R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445 ("Velevski") (at [24]-[25])."
Mr Samandi appears for himself. In the circumstances his submissions were not sharply directed to the issues of whether or not there were special or exceptional circumstances to justify the grant of bail or, in particular, whether he had either reasonable prospects of succeeding on his appeal or the grounds upon which he relied were reasonably arguable. However, we accept that Mr Samandi is contending that he can demonstrate each of these matters in combination with the fact that he is experiencing insurmountable difficulties preparing for his appeal in custody and that his appeal will effectively be rendered futile if he is not released having regard to the fact that his non-parole period is due to expire in November.
It is convenient to consider the question of Mr Samandi's prospects of succeeding on his appeal or whether the grounds upon which he relies are reasonably arguable by reference first to his appeal against conviction and secondly by reference to his appeal against sentence.
Part of the material before us included a written instruction from Mr Samandi to his lawyers. It is in handwriting. The first four paragraphs appear to have been written by Mr Samandi's lawyers. The fifth paragraph is in Mr Samandi's handwriting. Mr Samandi has signed the document in two places. It is dated 16 October 2018, or approximately two months before he was sentenced. The document is in these terms:
"I ALI SAMANDI hereby instruct my legal team, Mr Abbas and Luke Brasch:
1. To explore with the DPP any options of a plea bargain.
2. I no longer wish to pursue the subpoenaed material from Tamborine Police Station relating to the incident in QLD.
3. I have given access to my Facebook and email and I wish you to access my Facebook and email to access photos and videos of myself and XXX between December 2015 and February 2017.
I understand that my legal team were not able to access that material due to the passwords being wrong.
4. I have seen with the subpoenaed material and I am content with it.
Ali Samandi.
[signed]
5. I Instruct my legal counsel to make a plea offer to DPP that I accept the assault charges and the false accusation made against police and the malicious charge and put the common assault allegation on a form 1.
Ali Samandi
[signed]
16/10/18"
Apparently in accordance with those instructions, Mr Samandi's lawyers proceeded to negotiate with the Crown. The end result of those negotiations was that Mr Samandi offered to plead guilty to the charges already referred to but a number of further charges of sexual intercourse without consent were withdrawn. The Crown accepted Mr Samandi's offer on 18 October 2018.
However, before he was sentenced, Mr Samandi wrote to his lawyers indicating that he wished to withdraw his plea. That letter is in his handwriting and is dated 1 December 2018. Part of the document is in these terms:
"This document is instruction pertaining to my upcoming sentence at the Sydney Downing Centre District Court before Judge Stephen Norrish.
I instruct you to file a motion to the court in relation to seek an Arrest of Judgment, or better known Allacotus.
I have previously discussed this matter with you extensively in the past and repeat with emphasis that it is my right to change my plea.
I have no faith or confidence in your advice that if I plead guilty to the plea deal, I will gain a technical advantage and receive a lighter sentence. You do not know for certain if this will happen and your recent deceptive conduct has left me in little faith in your speculation or advice for this matter."
We observe in passing that Mr Samandi specifically said in this Court when questioned that he did not in effect understand in October 2018 that any indications or assurances that his lawyers might have given him about what sentence he would receive if he pleaded guilty could not be relied upon and that his lawyers could not in fact guarantee what the sentencing judge might finally decide. Mr Samandi appeared in this Court to maintain that he pleaded guilty as the result of a trick. If Mr Samandi was intending to say on this application that his guilty plea was influenced by what his lawyers told him about the sentence he might receive, his contemporaneous reference in that letter to an absence of faith or confidence in their advice about a lighter sentence suggests that his current position cannot be accepted.
It is apparent from the transcript of the sentencing proceedings before his Honour that Mr Samandi referred to his wish to reverse his plea. At one stage he interrupted the delivery of the sentencing remarks to say "I'm reversing my plea, I was tricked to take a deal". Similar comments by Mr Samandi are repeated later. Mr Samandi indicated that he was not guilty and said "I didn't do this thing". His Honour did not take heed of these comments and proceeded to sentence Mr Samandi in accordance with the plea he had entered.
The Crown case against Mr Samandi was very strong. As his Honour Hamill J noted in his reasons for rejecting Mr Samandi's bail application on 31 January 2018, the Crown case was based upon a very lengthy and detailed statement provided by Mr Samandi's wife extending over some 540 paragraphs, supported by diagrams and photographs of the injuries of which she complained. His Honour concluded that there were then unacceptable risks that could not be mitigated by the imposition of suitable conditions.
However, by the time the case came to be dealt with in the District Court, the case against Mr Samandi had arguably become stronger. The Crown case statement included a reference to a letter written by Mr Samandi to his wife in terms that included certain admissions to the physical assaults of which she complained as follows:
"Ever since you came to Australia was not treating you well. I raised my hand on you and I don't care if you use this against me because whatever you do is your right and you have the right to do … I am regretful as a dog … I'm not sad that I have come to prison, because you had not to be I wouldn't understand how much I was not treating you well. I was so stupid, you were my love and I really didn't appreciate you … After 3 years of living together. Is this fair to tell lie that I raped you? To hell with beating but where did you get the rape issue from?"
The circumstances in which a person might successfully appeal against conviction following a plea of guilty are well known. They were recently summarised by the Court of Criminal Appeal in Hunter Quarries Pty Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326 at [50]-[63]. It is sufficient for present purposes to observe that it is only where the material before the court discloses a real question as to the guilt of the accused person that the court will be likely to allow an appeal against a conviction entered following a plea of guilty. In the absence of some real question or doubt as to the guilt of the accused, and hence doubt about the integrity of the plea, it cannot be said that there has been a miscarriage of justice.
The question of whether Mr Samandi can establish that there has been a miscarriage of justice in his case will ultimately be a matter for this Court to consider when Mr Samandi's appeal is heard. Without wishing to foreclose that issue, it is difficult at this stage to see how the ground of appeal asserting that his plea of guilty should be set aside is reasonably arguable or that there are reasonable prospects of success. One of the significant difficulties in making any proper assessment of those questions for the purposes of considering his release application is that Mr Samandi bears the onus of establishing that special or exceptional circumstances exist and the only matter on which Mr Samandi relies in that regard is his assertion that his lawyers did not follow his instructions to make an application for him to withdraw his plea by reason of their incompetence or, on another view of Mr Samandi's submissions, as the result of some improper or conspiratorial conduct on their part. It should be noted that despite Mr Samandi's letter to his lawyers dated 1 December 2018, their instructions were not withdrawn and they continued to be instructed by Mr Samandi to appear for him at the sentencing proceedings.
However, a more fundamental problem is likely to confront Mr Samandi with respect to his appeal against his conviction. Mr Samandi pleaded guilty after the jury in his trial had been empanelled. Section 157 of the Criminal Procedure Act 1986 therefore applies. That section is as follows:
157 Change to guilty plea during trial
(1) If an accused person pleads "guilty" to an offence at any time after having been given into the charge of a jury, and the court accepts the plea, the court is to discharge the jury from giving a verdict in the matter and to find the accused person guilty of the offence.
(2) The finding has effect as if it were the verdict of the jury, and the accused person is liable to punishment accordingly.
A predecessor to this provision was dealt with in R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61.
Accordingly, following Mr Samandi's pleas of guilty, his Honour was obliged to discharge the jury and find him guilty of the offences. That finding has effect as if it were the verdict of the jury. His Honour therefore had no power to permit Mr Samandi to withdraw his pleas. The fact that his Honour proceeded to sentence Mr Samandi despite what on one view was his application to withdraw his pleas is entirely explicable having regard to this section. Presumably as well Mr Samandi's lawyers were aware of this provision and that it would have been futile to attempt to make any application on Mr Samandi's behalf to withdraw his pleas. Mr Samandi's only remaining avenue was to appeal against his conviction to this Court.
It does not appear to us in these circumstances that Mr Samandi has established on this application that he has reasonable prospects of success on his conviction appeal.
With respect to his sentence appeal, Mr Samandi contends that his lawyers failed to inform the sentencing judge about the existence of material relating to his health, in particular his mental condition. In short, Mr Samandi asserts that he suffered from a post-traumatic brain injury and that his condition was not properly or adequately brought to his Honour's attention. The difficulty with that submission, however, is that it is not reflected in what his Honour said in dealing with these matters. His Honour in fact dealt very extensively with Mr Samandi's psychiatric or psychological condition and complaints, in particular between pages 18 and 24 of his sentencing remarks. He dealt with the oft-cited principles discussed by McClellan CJ at CL in DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and the issues of the relationship between mental illness and general and specific deterrence and whether or not mental illness played any causative role in the commission of the offences. Part of what his Honour said is as follows:
"So far as the psychological report is concerned, in my view there is nothing in the report upon which I could rely to conclude that the prisoner at the relevant time suffered a mental illness, an intellectual handicap or other mental problems in the sense discussed…in De La Rosa."
The identity of the psychologist to whom his Honour was referring is not revealed either in his Honour's remarks on sentence or otherwise in the material relied upon by Mr Samandi in this Court. His Honour made it clear that he discounted the significance of the psychologist's opinions inasmuch as they were dependent upon the history provided by Mr Samandi, about the veracity of which his Honour expressed doubts. That was significantly for the reason that Mr Samandi did not give evidence at the sentencing proceedings so that his Honour's ability to verify what Mr Samandi told the psychologist was correspondingly reduced.
Once again, Mr Samandi bears the onus of establishing that his argument on appeal, that his sentence was excessive by reason of his solicitor's failure to bring his mental condition to the attention of the sentencing judge, is reasonably arguable or that there are reasonable prospects of success on appeal. Although not articulated in the clearest terms, Mr Samandi contends that even if there is a slim chance that his sentence might be reduced by this Court on appeal, any success that he might achieve in that regard will, or would, be rendered futile having regard to the fact that by the time his appeal is heard or decided, he will have served the significant bulk of his non-parole period. Despite the detail with which the sentencing judge dealt with Mr Samandi's mental health, he maintained in this Court that the absence of crucial medical reports substantially denied him procedural fairness and "unquestionably deprived him of mitigating circumstances for his sentence".
There is some support for the suggestion that his Honour was not provided with all of the medical material dealing with his mental health upon which Mr Samandi may have wished to rely. In the nature of the way in which the matters were presented in this Court, it is not possible to determine whether Mr Samandi contends that there is only medical evidence that was available to be used but which was not tendered as he wished or that there may now be evidence that has since become available that informs the state of his mental health in December 2018. There was understandably no discussion in this Court about the distinction between new and fresh evidence. The matter is to some extent analogous to the situation dealt with by this Court in Rae v R [2019] NSWCCA 284. In that case the following appears:
"[13] Mr Rae now seeks leave to appeal against his sentence on the single ground that a miscarriage of justice occurred because of what he maintains is the incompetence of his legal representation in the District Court. That complaint arises from the fact that Mr Rae had a history of mental illness which he says he drew to the attention of his legal representatives and yet no application was made to his Honour for an adjournment in order to explore that history or to obtain either past medical records or a then as yet unavailable psychiatric assessment and report for sentencing purposes.
[14] In order to make good that ground in this Court, Mr Rae sought to rely upon additional evidence that included, but was not limited to, a report dated 15 March 2016 from Dr Matthew Hocking, a consultant psychiatrist and a Hunter Mental Health Service Encounter Summary. The Crown did not accept that this material satisfied the test for the admission of new evidence set down in Goodwin v R (1990) 51 A Crim R 328. Mr Rae contended that this Court should in any event receive the material as evidence in this application upon the basis that it would cause him an injustice if it were not received (see Many v R (1990) 51 A Crim R 54) and that incompetent representation had left the sentencing tribunal to impose a sentence without the benefit of evidence of some fundamental fact: see R v Abbott (1985) 17 A Crim R 355.
[15] In R v Abbott, Street CJ said this at 355-356:
'On the hearing of this appeal, the appellant's counsel has come equipped with affidavits that prove further quite significant matters affecting her general emotional state at the time [of the offence] and providing assistance in the form of a psychiatrist's report and a psychologist's report. This material is highly relevant and ought to have been produced at the sentencing proceedings as it bears very significantly upon the determination of the sentence and the non-parole period. In the absence of that material, there can be little quarrel with the sentence, and the non-parole period determined by the learned judge, but taking into account that material, it establishes a case in which a shorter sentence and non-parole period were adequate to meet the requirements of criminal justice.
…
The evidence, it should be stated at the outset, does not qualify as fresh evidence but we have decided that it should be admitted in consequence of it having been made good on behalf of the appellant that she was incompetently represented at the sentencing proceedings and that that incompetence has brought about a miscarriage of justice. This case crosses the borderline separating poor quality, perhaps even inefficient, representation on the one side and incompetence of a degree causing miscarriage of justice on the other side. In order to remedy that we have thought it proper to admit the evidence and to proceed to evaluate the sentence ourselves in the light of the additional evidence.'
[16] It is this passage upon which Mr Rae principally relies in the elucidation of his complaint that there has been a miscarriage of justice as the result of the loss of an opportunity to rely upon either the existing medical material or to secure an expert report dealing with his psychiatric or psychological health for the purposes of sentencing."
Scant material was produced on the present application for the purposes of determining either whether there is now or was in December 2018 uncalled evidence that might further have informed Mr Samandi's claim that his mental illness was not adequately considered by his Honour or where the fault, if any, for the omission to put such evidence before his Honour may lie. As in Rae, the proper venue for that contest must ultimately be this Court when it hears Mr Samandi's appeal.
However, Mr Samandi did refer to some medical evidence that he contended would favourably have influenced his Honour in his sentencing deliberations if it had been available. Mr Samandi drew this Court's attention to the reports of Dr Evelyn Howe, a psychologist, dated 30 November 2007, Fleur Bishop, a psychologist, dated 28 April 2008 and Dr George D A Lord, a consultant physician neurologist, dated 24 July 2008.
Dr Lord took a history from Mr Samandi of having been struck on the forehead with a pool cue on 11 January 2007. Mr Samandi said that he was tackled to the ground and hit hard with the cue, rendering him semi-conscious and in pain. Blood was gushing from his head. He was taken by ambulance to Liverpool Hospital where he remained as an inpatient for three to four weeks. He had surgery to help reconstruct his damaged orbit. Mr Samandi told Dr Lord that he thereafter became aware of changes in his personality and mood. He related that he considered that there had been deterioration in his ability to make sensible decisions. He became less confident and extremely depressed.
Dr Lord wrote this:
"His symptoms and problems with his organisational skills and apparent loss of appropriate awareness of the consequences of his actions, lack of ability to control himself significantly to prevent these would be consistent with frontal lobe dysfunction and thus impair his ability to restore 'appropriate' normal behaviour.
…His psychological testing results were consistent with frontal dysfunction. Unfortunately psychological testing can be less than diagnostic in frontal lobe dysfunction. His MRI scan shows no sign of continuing damage to his left frontal lobe…The subsequent MRI with fibre tracking showed no obvious abnormality and this would confirm any local oedema that may have been a result of his head injury has resolved thus we can expect an improvement in his executive skills and should expect a return to normal function." (Emphasis added.)
Dr Howe's report was to a similar effect. However, it does appear that not all of her report has been provided to us.
In his consideration of the (unidentified) psychologist's report upon which Mr Samandi relied in the sentencing proceedings, his Honour said this:
"The prisoner's psychologist does provide the Court with extensive information about the causal link between substance and alcohol abuse and child sexual abuse. There is also an extensive dissertation upon the effect of post-traumatic stress disorder upon the conduct of individuals. The prisoner made claims in the course of this report that he had previously been diagnosed with ADHD and bipolar disorder but there is no medical evidence to support that.
…
There is a reference to the history of alcohol and substance abuse 'at the time of the current offences' which I cannot accept as a contributing factor to the offending. The way in which the psychologist analyses the matter is to suggest that the use of stimulants and the like contributed to the offending, the loss of control and the like, and this is to be taken into account in the context of past experiences making him susceptible to alcohol and drug abuse.
That thesis is difficult to accept for a number of reasons. Both the reliability of the history in relation to matters said to contribute to the use of drugs and the relationship of the drugs and alcohol in the commission of the offences. What I found most startling however about this report, as thorough as it is and interesting as it was to read, is her analysis of the relationship of trauma and anger. It is quite clear that the prisoner is a very angry man. He displayed that continuously to the victim over an extended period of time for no reason that can be explained. In no circumstance, as I would understand it, that is causally connected in my view with any condition that is claimed to be diagnosed."
Mr Samandi contends that his Honour did not have any evidence or history of his frontal lobe dysfunction that arguably led to, or was connected with, his tendency to lose appropriate awareness of the consequences of his actions and his lack of ability to control himself. Mr Samandi maintains that evidence of those conditions or propensities, sufficiently documented and explained, may have resulted in his Honour forming a different view about the possible relationship between Mr Samandi's anger and loss of self-control and the offences in question. Mr Samandi insists that he gave clear instructions to his former solicitor, Mr Abbas, to obtain his mental health history from the Department of Communities and Justice and NSW Victims Services but that those instructions were not heeded.
Whether Mr Samandi can establish his ground of appeal, that there has been a miscarriage of justice because his defence counsel failed to follow his instructions to bring his full medical condition to his Honour's attention, remains to be seen. Although the amount of time left to serve on his non-parole period may be small in relative terms, it would be wrong to treat the extent of any benefit that Mr Samandi might secure on appeal in any way as a reliable indicator of whether he has satisfied the onus that he bears on this application. In our opinion, it cannot be said that Mr Samandi's contention, that a consideration of the additional medical evidence will result in him being resentenced and his non-parole period being reduced, is not reasonably arguable or that there are not at least some reasonable prospects of success on that aspect of his appeal.
Mr Samandi also raises the question of his ability properly to prepare for his appeal in his present custodial situation. As difficult and unfortunate as may be the position in which he finds himself even, or perhaps particularly, as an unrepresented party, these are matters that confront all inmates in his position. We do not consider that these difficulties or his custodial situation are matters that qualify as special or exceptional circumstances standing alone. However, for the reasons above, they should be taken as part of the combination of factors to be matters of at least some significance.
In summary, we are of the view that Mr Samandi has established that there are special or exceptional circumstances that justify his release. That is because it cannot be said that his sentence appeal is not reasonably arguable or that there are not at least some reasonable prospects of success, taken in combination with the fact that Mr Samandi's appeal is listed for hearing on 14 August 2020, his non-parole period expires on 22 November 2020 and his custodial status is adversely affecting his ability as an unrepresented litigant properly to prepare for his appeal.
[2]
Bail concerns
When Mr Samandi originally applied for bail in January 2018, the Crown identified all of the matters referred to in s 17(2) of the Bail Act 2013 as relevant bail concerns. As already noted, following Hamill J's refusal of his application, Mr Samandi has remained in custody both on remand and serving his sentence. His non-parole period is due to expire in November.
The Crown did not refer to any particular bail concerns on the present application. In our opinion, none of the concerns originally identified continues to present an unacceptable risk.
One of Mr Samandi's significant motives for seeking a release order is that he will be able to satisfy this Court on appeal that any non-parole period imposed upon him following a re-sentence would mean that he will not, if released, be required to return to custody. It seems highly unlikely that Mr Samandi would imperil any prospect of success he may have on that argument by approaching the victim of his offences in any way. Even though there is evidence to suggest that he did this via a third party on an earlier occasion, that is now a number of years ago and there is no suggestion that it has reoccurred recently. It would also be inimical to Mr Samandi's prospects of success on appeal if he were to fail to appear in order to prosecute it. In any event, the concept of failing to appear in the post-conviction context is obviously a matter of reduced significance.
To the extent that there are any remaining risks attending Mr Samandi's release on bail, we are of the view that they can be mitigated by the imposition of appropriate conditions. Accordingly, Mr Samandi's application for a release order should be granted, subject to the following conditions:
1. He is to be of good behaviour.
2. He is to reside at XXX XXX XXX, Castle Hill.
3. He is to report to Castle Hill Police Station daily between the hours of 8am and 8pm.
4. He is not to be absent from the address at which he is required to reside except for the purposes of attending court, reporting to police, seeking urgent medical attention or to attend a pre-arranged medical or mental health assessment or appointment.
5. He is not to have any contact of any sort either directly or indirectly with XXX XXX.
6. He is not to apply for any new passport or travel document.
7. He is not to go within 1km of any point of international departure.
Finally, it should be noted that during the hearing of this application, it emerged that the Crown did not have a number of documents to which Mr Samandi was referring in his oral submissions and upon which he evidently was placing considerable reliance. These documents in fact included some additional detailed written submissions from him. In those circumstances we gave the Crown an opportunity to provide the Court with its own further written submissions dealing with these matters if so desired. In the events that occurred, the Crown provided very detailed and helpful written submissions to which we have had particular regard.
[3]
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Decision last updated: 09 June 2020