Saunders v R

Factual background

1. The facts were agreed for the purposes of sentence. The following summary is largely taken from the Judge's account of them.
2. The applicant and Ms Foote were in a domestic relationship from 2004 to 2017. They lived together at Mandalong. The relationship broke down in early 2017. Ms Foote was residing at another property with her new partner, Mr Fernance.

The events of 4 May 2017

1. On 4 May 2017, Ms Foote attended the property at Mandalong to pick up her dog. The applicant rang Ms Foote to advise that he could no longer look after her dog and that he was going to leave it at the property in a truck to be picked up. The applicant told Ms Foote he would be in Newcastle.
2. After Ms Foote had collected the dog, the applicant emerged from behind the truck and grabbed hold of her in a bear hug. He was behind her and had one arm across her chest and the other around her throat. The applicant squeezed Ms Foote's throat until she passed out (count 1 and commencement of count 2, Form 1). Ms Foote came to shortly afterwards. She tried to get up and the applicant grabbed her from behind as she screamed. The applicant placed his fingers into Ms Foote's mouth, who bit them. The applicant grabbed her neck again until she passed out. Ms Foote was able to wriggle free again after waking up (end of count 2).
3. The applicant took hold of Ms Foote again and said that he was going to harm her, Mr Fernance, and then himself (count 3). Ms Foote kicked at the applicant, who struck her, causing bruising around her eye (count 4). The applicant was then sitting on the ground and Ms Foote was standing. When Ms Foote tried to leave, the applicant held onto her legs. She sat next to him in an effort to calm him down. The applicant began crying.
4. Ms Foote eventually got into a car and locked the doors. After the applicant's parents arrived and she told them what happened, she left the property. She rang the applicant to check whether he was going to be home and the applicant told her that he was sorry for what had happened. He said he "didn't mean to snap" and apologised to her.

The later offences

1. After these events and before June, the applicant attended Mr Fernance's workplace and asked to speak to him. The two men went to where the applicant's vehicle was parked. The applicant pointed to a sledgehammer in the back of the vehicle, a scuffle ensued and the applicant said, "I came here to knock you out" (count 5).
2. Around 10am on 7 November 2017, the applicant called Mr Fernance. A settlement dispute was continuing between the applicant and Ms Foote concerning their assets. The applicant threatened Mr Fernance, saying, "Game on, I'm going to get you" (count 6, Form 1).

The proceedings on sentence before the Judge

1. During the proceedings on sentence before the Judge on 26 March 2021, the applicant's counsel and the Crown tendered written submissions. Relevantly to the ground of appeal, the applicant submitted under the heading "Mitigating factors" the following: "14. It is submitted that the Court would be satisfied, on the balance of probabilities, of a number of mitigating factors: a. The offender does not have a significant criminal record: s21A(3)(e). He has no prior matters of domestic violence. His last offence was 14 years ago. In these circumstances some leniency can be extended to the offender. b. The offender has good character (to some degree): s21A(3)(f). c. The offender is unlikely to reoffend by virtue of the following (s21A(3)(g)): i. His age ii. The lapse of time since other offending iii. The lengthy compliance with bail conditions iv. The circumstances of his offending v. His limited criminal history vi. His strong subjective circumstances - including positive family relationships and commitments, employment and a generally prosocial lifestyle vii. His remorse d. The offender has good prospects of rehabilitation (s21A(3)(h)) for the same reasons as are articulated above in regard to the likelihood of reoffending. e. The offender is remorseful. This is demonstrated by his pleas of guilty and in the subjective material: s21A(3)(i). f. The offender entered a plea of guilty." (Emphasis added.)
2. When making submissions regarding mitigating factors, the Crown's written submissions included the following: "14. The Crown accepts that the offender does not have a record of previous domestic violence convictions, nor is the submission made that his record is significant, such that he ought be denied any leniency. There is a 10-year gap between the offending before the court and the offences on the offender's record." (Emphasis added.)
3. The applicant's prior criminal history which was tendered by the Crown disclosed the following offences:

• 30/1/1991 - Manila Local Court - Assault - Fined $500
• 9/11/2005 - Toronto Local Court - Possess unregistered firearm - Fined $400
• 9/11/2005 - Toronto Local Court - Not keep firearm safely - Dismissed s 10
• 21/6/2007 - Wyong Local Court - Assault occasioning actual bodily harm - Fined $500

1. The Crown also tendered a victim impact statement and a sentencing assessment report. The applicant's counsel tendered an affidavit sworn by the applicant, some character testimonials, and a health summary sheet which her Honour read. The applicant's counsel then said: "Your Honour, could I raise one issue that arises from the sentencing assessment report. The sentencing assessment report was received by the parties today. The sentencing assessment report essentially - well, the offender is assessed as unsuitable to undertake Community Service work and it's still open to the extent that he would need to be assessed for light duties by his treating doctor before that assessment could change, but it certainly is on the cards or it's potentially available that he may be assessed as suitable for a Community Service work undertaking." [1]
2. After the applicant confirmed that he wanted the two offences on the Form 1 to be taken into account on sentence for count 1, the following exchange took place between the applicant's counsel and the Judge: "[Applicant's counsel]: In light of what is raised in the sentencing assessment report, before the sentence proceedings conclude I would ask that the Court consider an adjournment of the proceedings for him to be assessed by his treating doctor and then for an updated report from Community Corrections in respect to his suitability. HER HONOUR: But doesn't that depend on what view I form about the appropriate sentence because I've read the Crown's written submissions and the Crown submits that only a full-time custodial sentence is appropriate, so I would want to form that view before I adjourn proceedings." [2]
3. Her Honour was then advised that the applicant was required for cross-examination by the Crown. During the applicant's evidence, he was neither asked in his evidence-in-chief nor in cross-examination about his prior criminal history. At the conclusion of the applicant's evidence, his counsel sought an adjournment so that he could have shoulder surgery which had been previously booked. In permitting the adjournment, the Judge said: "So I will allow an adjournment for that to happen. I will stand the matter down now so that can occur. Can I indicate that I won't be requesting an updated sentencing assessment report until such time as I have formed a view as to whether the sentence is to be an Intensive Corrections Order or full-time and I haven't formed any view because I haven't heard submissions at this stage." [3]
4. The sentencing proceedings were adjourned until 7 May 2021.
5. On the resumption of the sentencing proceedings, the applicant's counsel tendered psychological and orthopaedic reports and her Honour heard submissions from both parties.
6. At the commencement of the submissions, the applicant's counsel said: "Your Honour, could I indicate that in terms of submissions made on sentence on behalf of the [applicant], reliance is largely based upon the written submissions that are dated 25 March 2021 that were provided on the last occasion, and I just propose to speak to a few matters relatively briefly." [4]

Some findings by the Judge

1. After recounting the facts of the offences, the Judge, in assessing the objective seriousness of count 1, took into account the degree of violence, the isolated area where the offending occurred, and that the offending was an episode of domestic violence. Her Honour regarded "the rendering of the complainant unconscious as a more serious example of this offence, disclosing a higher level of objective seriousness in circumstances where the offence is also made out if a person is rendered insensible or incapable of resistance". Her Honour was also satisfied that the applicant had demonstrated recklessness of a very high order. Her Honour was not satisfied beyond reasonable doubt that there was some planning in relation to the offending.
2. The Judge assessed the objective seriousness of count 1 as "being in the middle of the range". [8]
3. In assessing the objective seriousness of count 4 (assault occasioning actual bodily harm), the Judge took into account the degree of violence used; the bruising around the victim's face being the actual bodily harm occasioned and the offending being an episode of domestic violence. Her Honour assessed the objective seriousness of count 4 as being "below the middle of the range". [9]
4. As to counts 3 and 5, her Honour assessed the objective seriousness of these offences as being "below the middle of the range". [10]
5. The Judge noted that the Crown relied on two aggravating factors, the first being that the victim was vulnerable because the offending occurred at a geographically isolated location. Her Honour said that she had taken that factor into account in assessing objective seriousness and did not propose to double count it. Her Honour was not satisfied that the second aggravating factor relied upon by the Crown, being that the offence involved planning, had been established beyond reasonable doubt.
6. After reading out passages from Ms Foote's victim impact statement, the Judge observed "that the offending has had a significant impact upon [Ms Foote's] life, not only at the time the offending was committed but because of the ongoing emotional difficulties that impact on her day to day life". [11]
7. When considering the applicant's subjective case, the Judge said: "[42] The offender is now 52 years of age. [43] He has a criminal history commencing in 1991 when he was fined for an offence of common assault. [44] In 2005, he was dealt with for possessing an unregistered firearm and not keeping a firearm safely. He was fined. [45] In 2007, he was dealt with for an offence of assault occasioning actual bodily harm and fined. [46] Having regard to the offender's criminal history, I am satisfied that it disentitles him to the leniency that would otherwise be available to a person of good character." [12] (Emphasis added.)
8. The Judge then addressed the applicant's background, his previous relationships, the applicant's expressions of remorse, his future plans, medical history and other evidence tendered on his behalf. Her Honour detailed at some length, the psychologist's report and treatment recommendations.
9. The Judge noted that the psychologist was of the opinion that no mental health treatment was warranted and there were no offence-related needs to be addressed. Her Honour said: "I simply do not accept either that there are no dysfunctional beliefs to be addressed or that there are no beliefs around entitlement, ownership or domination. It is clear in my view that the conduct was a response to feeling aggrieved because Ms Foote had chosen to be with another partner." [13]
10. The Judge then referred to the reliance by the Crown and the applicant's counsel upon oral and written submissions. Her Honour said: "[The applicant's counsel] submitted that the Court should have regard to the following factors: (1) That the offences could have been dealt with in the Local Court. I do not accept this submission in circumstances where I regard the jurisdictional limit of two years as inadequate sentencing scope, given the objective seriousness of Count 1. (2) The offender is remorseful, relying upon the evidence of the offender and his remorse demonstrated in the Agreed Facts. (3) That he has no significant criminal record and he has good prospects of rehabilitation and is unlikely to reoffend. (4) The seriousness and significance of the offender's health issues, which it was submitted are a matter in mitigation. (5) The hardship to the offender's partner and her children, the offender's children and his parents and the offender's employee and business, which it was submitted is relevant to the nature of the penalty imposed." [14]
11. The Judge found that the applicant was remorseful for his conduct. As to his prospects of rehabilitation, her Honour said: "I am satisfied the offender has good prospects of rehabilitation, having regard to his age, his limited criminal history, his employment history and his significant family support, and that I accept he is otherwise of good character." [15]
12. Her Honour was also satisfied that the applicant was unlikely to reoffend.
13. The Judge accepted the applicant's evidence of his health conditions being diabetes, heart disease, high blood pressure and recent surgery for a shoulder injury. Her Honour said that each of those matters had been taken into account in determining the appropriate sentences.
14. Her Honour said that the s 37 offence on the Form 1 was objectively serious and warranted an increase in the sentence that would otherwise be imposed for count 1. However, as the s 13(1) offence on the Form 1 would not have resulted in a custodial sentence, her Honour did not propose to increase the sentence for that offence.
15. The Judge had regard to the principle of totality and considered, for counts 1 and 4, no penalty other than imprisonment was appropriate. In imposing an aggregate sentence for these counts, her Honour indicated a sentence of 2 years and 10 months' imprisonment after the 5% discount for count 1 taking into account the Form 1 matters, and 5 months' imprisonment after the 5% discount for count 4. Her Honour was not satisfied that the custodial threshold had been crossed in relation to counts 3 and 5 and indicated her intention to impose community correction orders.
16. Her Honour found special circumstances being the applicant's first time in custody. Her Honour then imposed the sentences detailed at [6]-[7] above.

Ground of appeal: The sentencing judge denied the applicant procedural fairness in finding that his criminal history disentitled him to leniency

Argument

1. The applicant submitted that both he and the Crown had relied upon written submissions, together with brief supplementary oral submissions. Submissions in relation to the applicant's criminal history were limited to the written submissions of the parties. The applicant noted that the applicant's criminal history was not ventilated in oral submissions at any point during the proceedings by the parties, or indeed by the Judge.
2. The applicant referred to paragraph 14(a) in his written submissions, which is quoted at [16] above. The applicant pointed to paragraph 14 in the Crown submissions, quoted at [17] above, which the applicant contended demonstrated that the Crown agreed with his submission. As both the applicant and the Crown had submitted that leniency should be extended on account of his limited criminal history, the applicant argued that if her Honour was minded to make a finding contrary to that, the Court was obliged to give the parties an opportunity to call evidence, or to make further submissions, on that point to "open up" the proceedings as described in Mustafa v R ('Mustafa'). [16] Her Honour's failure to do so, the applicant argued, resulted in the applicant being denied the opportunity to present his case fairly such that the question of leniency could be properly ventilated.
3. It was submitted that this denial of procedural fairness resulted in a practical injustice and not merely a theoretical injustice, as described by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam. [17]
4. The applicant submitted that the issue of extending leniency was a significant and important part of the applicant's case and the failure to give the applicant an opportunity to address this issue occasioned upon him a clear practical injustice.
5. By way of contrast, the applicant referred to the submissions made to the Judge to consider an Intensive Correction Order as an alternative to full time imprisonment and pointed to her Honour's statements quoted at [20] and [21] above. It was submitted that the nature and extent of the practical injustice was highlighted in those passages. The applicant pointed out that her Honour informed the parties that she had not yet formed a view as to full-time imprisonment and was awaiting submissions from them prior to determining this question.
6. In oral submissions, Mr Burton, who appeared in this Court for the applicant, argued that her Honour's remarks quoted at [34] above do not express that any leniency was being extended to the applicant. Whilst Mr Burton accepted that some leniency had been extended by the Judge to the applicant because of his limited criminal record, no leniency had been given to him as a separate consideration under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW). He argued that there was a lack of procedural fairness as both the Crown and the applicant had agreed that leniency should be extended, and the Judge was silent on this issue.
7. The Crown submitted that the applicant's counsel's decision not to address the Judge orally on the applicant's criminal history was explicable on the basis that the matter had been dealt with in written submissions, and his prior criminal history which involved matters of violence was not a strong feature of his subjective case. The Crown contended that it could not be reasonably argued that anything advantageous to the applicant could have been said on this topic if the Judge had specifically raised the issue during the proceedings on sentence.
8. It was pointed out that the Crown's written submissions before the Judge did not concede that the applicant was entitled to the full benefit of a finding of leniency on account of his criminal history. Furthermore, the burden of raising matters of mitigation rested on the applicant and it could not be assumed, irrespective of the Crown's position, that a mitigatory finding would be made.
9. The Crown submitted that the applicant was not precluded from making further submissions or calling evidence about the issue, nor was he deprived of a reasonable opportunity to prepare or present his case.
10. Ms Wilkins SC, who appeared in this Court for the Crown, observed that the applicant's ground of appeal did not challenge the Judge's finding, but it was the process about which he complained. Ms Wilkins submitted that in any event, her Honour appears to have accepted the submissions made in writing about the applicant's limited criminal history and made findings favourable to the applicant.
11. Ms Wilkins contended that there was no practical unfairness that the applicant had suffered.

Consideration

1. It is well known that an offender is entitled to procedural fairness during proceedings on sentence. [18] It is also clear "that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process…" [19] The ultimate question is whether there has been unfairness. As Garling J (with whom Macfarlan JA and Johnson J agreed) observed in Weir v Regina: "The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37]." [20]
2. The applicant's complaint in the present case is not what the Judge did during the sentencing proceedings but what her Honour did not do. He complains that the procedural unfairness arises by being deprived of the opportunity to make further submissions on his limited criminal history where there was agreement with the Crown on this issue. He contends he had an expectation that the issue would be raised by the Judge if she was minded to depart from that joint submission. He places reliance on what was said by Rothman J in Mustafa at [90]: "The applicant's case was presented, in relation to the imposition of an ICO, fully, fairly and forcefully. All that is required for natural justice to be satisfied is for the issue to be opened up and the opportunity provided to a party to address the issue or for the issue to be addressed in a manner which should reasonably have caused the party to apprehend that the issue had been opened up. Ground 2 of the appeal must fail." [21] (Footnotes omitted.)
3. The applicant's contention is that the issue was not "opened up" by the Judge. If it had been "opened up", the applicant would have had the opportunity to address it and by her Honour's failure to do so, the requirement for procedural fairness has not been satisfied. However, in paragraphs that preceded [90], Rothman J made the following observations: "[86] The sentencing judge is not bound by any agreement between the prosecutor and the accused. Nor is the sentencing judge bound by any range or limits suggested by either or both of the prosecutor and the accused to the Court. [87] Leaving aside currently irrelevant considerations in relation to procedural fairness, such as the rule against bias or its perception, natural justice requires that a party to proceedings, including an accused in criminal proceedings, if not especially an accused in criminal proceedings, is given a reasonable opportunity to prepare and to present his or her case. The obligation that a party be given a reasonable opportunity to present their case, including a reasonable opportunity to prepare the case, is at the heart of the requirements of natural justice and the exercise of judicial power. [88] Nevertheless, it is not the function of the Court to ensure that a party uses to its best advantage an opportunity so given. In this case, there can be no suggestion that the parties did not use the opportunity to present to the sentencing judge arguments on why the sentence should be an aggregate sentence; of less than 3 years in duration; and imposed by way of ICO. The submissions of the applicant below are replete with such urging." [22] (Emphasis added; footnotes omitted.)
4. In Brown v R, Harrison J (with whom Hoeben CJ at CL and Beech-Jones J (as his Honour then was) agreed), when referring to concessions made by the Crown, said: [31] However, it is clear that a "sentencing judge is not bound to accept the Crown's assessment of the objective gravity of an offence": per Hoeben CJ at CL in Stojanovski v R [2013] NSWCCA 334 at [34]. One important aspect of that observation lies in the fact that there will necessarily, or at least usually, be a distinction between a Crown concession on a matter about the adoption of which the judge will have limited input, such as agreed questions of fact, and matters about the ultimate determination of which the judge retains a discretion. A submission by the Crown that a particular offence is of a particular level of objective seriousness could rarely in that sense qualify as a concession binding a sentencing judge unless the judge expressly indicated that he or she proposed to accept it or otherwise gave an intimation to the parties that he or she would act upon it. In those circumstances, a party might be denied procedural fairness, not as the result of the Crown's "concession", but as the result of the judge's express or implied indication that he or she would adopt it." [23] (Emphasis added.)
5. The first obstacle to the applicant's complaint of denial of procedural fairness arises from these statements of principle. District Court Criminal Practice Note 20 requires an outline of submissions to be filed prior to the sentence date. The requirement for written submissions provides an opportunity for the parties to "open up" any issue which is relevant to the sentence to be imposed. As a sentencing Judge is not bound by an agreement between the Crown and the offender on a matter involving judicial discretion, neither party can have a legitimate expectation of an automatic acceptance of the agreement by the sentencing Judge. In oral submissions, the parties have a further opportunity to present their respective cases. During this time, the parties should bring to the sentencing Judge's attention the agreement between the parties so that the issue might be addressed. Where the agreement is confined to written submissions, the Judge's silence on the issue does not mean that procedural fairness has been denied.
6. In the present appeal, the issue raised in the applicant's written submissions was whether "some" leniency could be extended to the applicant as it was contended on his behalf that he did not have a significant criminal record, which is a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act. The Crown did not refer to s 21A(3)(e) in written submissions, but stated that: "14. The Crown accepts that the offender does not have a record of previous domestic violence convictions, nor is the submission made that his record is significant, such that he ought be denied any leniency. There is a 10-year gap between the offending before the court and the offences on the offender's record."
7. It is evident that the parties were not in agreement as to the gap between the prior offences and the offences for which the applicant was being sentenced. The applicant's submission referred to his "last offence [being] 14 years ago", whereas the Crown stated that "[t]here is a 10 year gap between the offending before the court and the offences on the offender's record". It is surprising that this divergence was not raised by the parties before the Judge in oral submissions, but it was not.
8. In any event, whether leniency should be extended under s 21A(3)(e) was a discretionary matter for the Judge and the applicant could not have had a legitimate expectation that the Judge would automatically accept the submissions that had been made. Putting aside for one moment the disagreement between the applicant and the Crown as to the length of time between the offences, the applicant's prior record included offences involving violence and possession of an unregistered firearm. Although they may not have been offences of "domestic violence", the applicant was being sentenced for serious offences involving violence and his prior history of violent offending could not be disregarded. There was ample opportunity for the applicant's counsel to further open up the issue before the Judge in oral submissions, but counsel chose not to do so. The Judge neither expressly nor impliedly indicated that she would adopt the submission.
9. In argument in this Court, the applicant placed reliance on the exchange between his counsel and the Judge which is quoted at [20]-[21] above. Rather than highlight a practical injustice, the exchange demonstrates the opportunities the applicant had to present his case. The applicant's counsel had raised the issue of a potential change in the assessment of unsuitability to undertake community service work in the passage quoted at [19] above and returned to this issue after confirmation that the Form 1 matters were to be taken into account.
10. No unfairness has been demonstrated. The applicant was not denied procedural fairness.
11. The second obstacle to the success of the applicant's appeal arises from the terms of the ground of appeal. The denial of procedural fairness is grounded on a "finding" by the Judge that the applicant's "criminal history disentitled him to leniency". No such finding was made by the Judge.
12. Her Honour's finding was confined to a disentitlement to leniency "that would otherwise be available to a person of good character". [24] The judicial discretion to allow leniency is not all or nothing and may be a matter of degree. Indeed, this was recognised in written submissions. The applicant's submission was for "some leniency", whereas the Crown submission was confined to the applicant not being denied "any leniency". Neither party submitted that the applicant would be entitled to leniency available to a person of good character, which as a matter of common sense was not to be extended to the applicant as a consequence of his prior criminal history.
13. Although the Judge did not refer to s 21A(3)(e), it is plain that her Honour extended leniency to the applicant on account of his limited prior criminal history. Her Honour accepted that the applicant was otherwise of good character. Her Honour's favourable findings to the applicant included his good prospects of rehabilitation and unlikelihood of reoffending.
14. The ground of appeal has not been established.

Orders

1. The orders I propose are: 1. Leave to appeal granted. 2. Appeal dismissed.
2. LONERGAN J: I agree with Price J.

Endnotes

1. Tcpt, 26 March 2021, p 4(27).
2. Ibid, p 5(21).
3. Ibid, p 17(26).
4. Tcpt, 7 May 2021, p 3(13).
5. Ibid, p 4(1).
6. Tcpt, 12 May 2021, p 3(17).
7. Ibid, p 3(19).
8. R v Saunders [2021] NSWDC 530 at [26].
9. Ibid at [28].
10. Ibid at [30]-[32].
11. Ibid at [40].
12. Ibid at [42]-[46].
13. Ibid at [79].
14. Ibid at [84].
15. Ibid at [87].
16. Mustafa v R [2021] NSWCCA 164 at [90].
17. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [14].
18. Pantorno v The Queen (1989) 166 CLR 466; 38 A Crim R 258; [1989] HCA 18 at [462]-[473] (Mason CJ and Brennan J).
19. Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34] (Gleeson CJ).
20. Weir v Regina [2011] NSWCCA 123 at [66].
21. Mustafa v R at [90].
22. Ibid at [86]-[88].
23. Brown v R [2020] NSWCCA 132 at [31].
24. R v Saunders at [46]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2022