CRIME - Appeals - Criminal Appeal Rules - application for leave to set aside or vary an order - whether the Court failed to consider a ground of appeal - bound by conduct of counsel
Source
Original judgment source is linked above.
Catchwords
CRIME - Appeals - Criminal Appeal Rules - application for leave to set aside or vary an order - whether the Court failed to consider a ground of appeal - bound by conduct of counsel
Judgment (7 paragraphs)
[1]
Judgment
THE COURT: On 5 February 2020 the Court heard the applicant's application for leave to appeal and the appeal. On 14 February 2020 the Court made orders granting leave to appeal and dismissing the appeal and published its reasons: Simmons v R [2020] NSWCCA 16 (the Principal Judgment).
On 27 February 2020, Mr Simmons (the applicant), applied for leave pursuant to r 50C of the Criminal Appeal Rules (NSW) which provides:
"50C Power to set aside or vary order
(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.
(1A) An application to set aside or vary an order may only be made with the leave of the Court.
(1B) The Court may determine both whether to grant leave and the application on the papers.
(2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.
(3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.
(4) The Court may not extend the time limited by subrule (2) or (3).
(5) Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions)."
It was common ground that the application under r 50C had been made within the time provided for under r 50C(2) and that the Court has power to set aside or vary an order if leave is granted.
The application was accompanied by written submissions. The applicant sought leave on two bases. First, the appellant submitted that the Court did not address ground 3 separately; and, secondly, the appellant identified an error in the table of charges relied on by the Crown which was adopted by the Court in its judgment. The error related to the description of an offence on a Form 1.
For the reasons which follow, the Court is not persuaded that leave is warranted. The Court did not consider it to be necessary to hear from the Crown in opposition to the application.
[2]
The relevant principles
The failure of this court to address a ground of appeal may constitute a basis for leave to be granted under r 50C: Baghdadi v R (No 2) [2012] NSWCCA 77. However r 50C does not permit a party to re-agitate an unsuccessful appeal or seek to argue it differently in the hope of obtaining a different result: Miller v R (No 2) [2016] NSWCCA 158; (2016) 260 A Crim R 554 at [48]-[53] (Beazley P, Fullerton and Hamill JJ).
[3]
The substantive appeal on 5 February 2020
The applicant's notice of appeal which was heard on 5 February 2020 contained the following 4 grounds:
"1. His Honour erred by taking into account the applicant's record of previous convictions in his assessment of the objective seriousness of the offences.
2. His Honour erred by taking into account that the applicant was on conditional liberty in his assessment of the objective seriousness of the offences.
3. His Honour erred in his application of the principle of proportionality.
4. The aggregate sentence was manifestly excessive in the circumstances of this case."
In the Principal Judgment, the Court (Adamson J, Macfarlan JA and Beech-Jones J agreeing) said, of present relevance:
"Grounds 1, 2 and 3: alleged failure to distinguish between objective seriousness and subjective aggravating factors of conditional liberty and criminal history
[13] The grounds of appeal are set out above. Ms Wasley, who appeared for the applicant, accepted that grounds 1, 2 and 3 are related in that, if this Court is satisfied of ground 1 or 2, ground 3 will be made out, but otherwise it will not be made out. Each of these grounds turns on whether the applicant has established that the sentencing judge erroneously took either the applicant's conditional liberty or his criminal history into account in assessing objective seriousness…
…
[20] In these circumstances, I am not persuaded that either ground 1 or ground 2 has been made out. It was accepted that ground 3 depended on the plaintiff establishing either or both of grounds 1 and 2."
[4]
Whether ground 3 was pressed as a separate ground
As referred to above, ground 3 was expressed as a separate ground in the notice of appeal. The applicant's written submissions addressed this ground separately. However, in the course of oral argument it emerged that ground 3 was, in effect, the corollary to grounds 1 and 2. This proposition was initially resisted by Ms Wasley, who appeared on behalf of the applicant on 5 February 2020. However, she ultimately made the concession.
The relevant passages from the transcript (at tr. 5.44-6.38 and tr. 7.36-8.6) are as follows:
"WASLEY: Perhaps if I can move on to ground 3 which relates to proportionality.
MACFARLAN JA: This is just a corollary of grounds 1 and 2, isn't it?
WASLEY: If the Court is not of the view that his Honour has impermissibly taken into account those subjective aggravating factors in assessing the objective seriousness it is submitted that his Honour has erred in his application of the principle of proportionality. I've referred to the relevant authority in the applicant's written submissions at para 35 when dealing with grounds 1 and 2.
In relation to the issue of proportionality it's relevant in my submission to consider the indicative sentences indicated by his Honour in respect of each of the offences taking into consideration his Honour's findings of objective seriousness and those matters are set out in a table at p 2 of the applicant's written submissions.
The applicant relies upon the portions of the sentencing judge's remarks on sentence to which I've referred the Court in respect of grounds 1 and 2 in relation to what is submitted is the primacy that the applicant's criminal record took in his Honour's sentencing exercise and it's submitted that the ultimate sentences indicated in relation to each of the offences for which the applicant faced sentence demonstrate that his Honour didn't apply principles of proportionality in line with McNaughton in coming to either those individual sentences or in fact the ultimate ten year head sentence that was imposed.
If the Court considers a six month indicative sentence was imposed for sequence 13 which was found to be at the lower end of the range against a maximum penalty of five years the actual damage that occurred was some damage to the wooden frame of the flyscreen.
In respect of the first group of offences his Honour indicated a sentence of one year and six months for an offence of larceny which his Honour found was below mid-range, towards the lower end of the range, against a head sentence of five years with matters on the Form 1 of not [sic] particular significance including one that was a fine only offence.
MACFARLAN JA: If the sentence imposed, the aggregate sentence, was open to his Honour there were a number of very serious offences that were committed that arguably justified the aggregate sentence irrespective of what particular individual sentences may have been indicated.
WASLEY: Perhaps I can deal with the final ground which is manifest excess at the same time as dealing with the issue of proportionality.
…..
WASLEY: Yes, I say the indicative sentences were excessive and the significant accumulation that was involved in the sentence imposed resulted in a manifestly excessive sentence.
In relation to ground 3, and the issue of proportionality, it's submitted that consideration of each of the indicative sentences against the findings of objective seriousness indicate that the indicative sentences were not proportionate and that his Honour has misapplied the principles of proportionality when indicating those sentences for each of the matters for which he imposed sentence.
MACFARLAN JA: You don't have to give a reason why it went wrong if you can establish manifest excess but to assist you in reaching the conclusion, and perhaps to assist grounds 1 and 2, a reason may well have been that his Honour took into account the record and conditional liberty in assessing the upper bounds referable to the offence.
WASLEY: Yes. Your Honour, that's really the substance of ground 3 but it appeared to be worthwhile to also address the manifest excess ground at the same time noting the relevance of the indicative sentences in an aggregate sentence to determining manifest excess."
[Emphasis added.]
The sequence evident from the transcript extracted above was that, although Ms Wasley initially resisted the proposition that ground 3 was a corollary of grounds 1 and 2, she ultimately accepted the proposition that ground 3 was, in substance, dependent on the applicant making out either of grounds 1 or 2. In other words, her final submission was that what made the indicative sentences disproportionate (ground 3) was that the sentencing judge had erroneously taken into account conditional liberty and prior history in assessing objective seriousness (grounds 1 and 2). To the extent that lack of proportionality was alleged which was not covered by grounds 1 and 2, this fell to be considered under ground 4, the manifest excess ground, which appears to be the point Ms Wasley was making in the last passage extracted.
It is plain from the transcript that this was the way the Crown understood the concession. In oral submissions, all that the Crown said with respect to ground 3 was as follows, at tr. 11.12-.13:
"…Your Honours in respect of ground 3 that's really dealt with in how your Honours deal with grounds 1 and 2. On to ground 4 which is the complaint that the aggregate sentence was manifestly excessive…"
When Ms Wasley was invited to make any submissions in reply, she indicated that she had nothing in reply. Thus, Ms Wasley, by her conduct, indicated to the Court that the Crown's understanding of the concession, based on the exchange between the Presiding Judge and Ms Wasley was correct. In these circumstances, the applicant is bound by the conduct of his counsel.
It is important to recognise the value of oral argument in appeals before this Court. While frequently counsel indicate that they rely on their written submissions, the hearing of an appeal is dynamic. Positions taken and submissions made in writing may be confirmed, varied or abandoned by counsel in the course of a hearing. These changes may arise as a result of further reflection by counsel or as a consequence of questions asked by the Bench or matters raised in opposition by other counsel. The Court is entitled to act on the basis of those concessions and decide the appeal or application accordingly. The principle that an accused is bound by the conduct of his or her counsel at trial (R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8] (Gleeson CJ) and [79] (McHugh J)) also applies in the different context of appeals.
In the present case, there was an objectively sound forensic reason for Ms Wasley to make the concession which she did: ground 3 did depend on grounds 1 and 2 since this was the basis on which it was said that the indicative sentences were disproportionately high, having regard to the objective seriousness of the offences. In any event, proportionality necessarily arose as part of ground 4 since any disproportionality would tend to give rise to excess in the result. We add that separate consideration of Ground 3 would not in any event have affected the outcome of the application for leave to appeal as the only matters relevant to it were in our view covered by Grounds 1, 2 and 4.
Having regard to the matters set out above, the Court is not persuaded that it is appropriate to grant leave pursuant to r 50C in respect of ground 3.
[5]
The error in the table of offences
As to the second matter, the applicant has raised the circumstance that this Court proceeded on the basis that offences on a Form 1 were to be taken into account on the sentence for sequence 17 (common assault) and not, as was the case, on the sentence for sequence 16 (aggravated break, enter and commit a serious indictable offence). The entry in the table contained in the Crown's submissions was the source of this Court's misapprehension, which was replicated in the table in the Court's reasons. The Court relies on counsel to identify any errors in their own and their opponent's submissions. While the Court takes care to ensure that its judgments reflect the primary records in the appeal books, it is entitled to rely on the parties to assist it in that process.
The relevant principles were summarised by this Court in Kauwenberghs v R (Cth) [2009] NSWCCA 201 at [10] (Beazley JA, Hall and Fullerton JJ):
"[10] The first question is whether, in considering the application for leave to appeal against sentence, the court proceeded (or apparently proceeded) according to some misapprehension of fact or law. Unless that has occurred the application to vary the sentencing order must be dismissed. If it is established that the court proceeded according to some misapprehension of fact or law, the court must then be satisfied that the matter complained of affected its consideration of the merits of the appeal in some material way. That is, the misapprehension must be a material one. Again, unless that matter is established, the application to vary the sentencing order must fail. Assuming the materiality of the misapprehension of fact or law, the final question is whether it was due to the applicant's neglect or default."
For the reasons given above, the Court accepts that it proceeded on a misapprehension of fact. However, the Court is not satisfied that the matter complained of affected its decision in a material way. It was not relevant to grounds 1 and 2 and, in so far as it was relevant to proportionality, this issue was neutral to the ground of manifest excess since an aggregate sentence was imposed. The discrepancy is not of such materiality to warrant this Court re-opening the appeal. The Court has found, in its reasons for not upholding ground 4, that the sentence imposed was not manifestly excessive.
[6]
Orders
The Court makes the following orders:
1. Application for leave pursuant to r 50C of the Criminal Appeal Rules (NSW) to vary the orders entered by the Court of Criminal Appeal on 14 February 2020 refused.
[7]
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: 04 March 2020