Weir v Regina

Facts 10A statement of agreed facts was tendered to the sentencing judge. A brief summary is set out below. 11On the morning of Sunday, 1 February 2009, the applicant armed himself with a claw hammer. He, having left his unit on the 11 th floor of a block of apartments in Waterloo, climbed to the 12 th floor of the same building and approached the front door of the unit directly above his. 12It was occupied by the victim, Wayne O'Connor, who lived there by himself. The front door of the unit was ajar and held open by a wedge. Mr O'Connor was seated in his lounge room. 13The applicant struck the front of the door with the hammer causing an indentation in the panel. This conduct gave rise to the second charge. 14Upon hearing that noise, Mr O'Connor came to the front door. The offender swung the hammer at him but missed. The applicant followed Mr O'Connor into the unit and swung the hammer a second time. On this occasion the claw end of the hammer lodged inside Mr O'Connor's left forearm. 15After removing the hammer from the left forearm, the applicant struck Mr O'Connor for a second time. This blow hit him on the forehead with the blunt end of the hammer. 16Mr O'Connor sustained a laceration of the left forearm with extensor tendon injury. Clinical examination confirmed rupture of the extensor tendon to the left ring finger. Surgery was performed to repair the tendon which required a splint for six weeks post-operatively. Mr O'Connor suffered a compound fracture/dislocation of his right big toe for which surgical debridement and fixation was required. He also sustained a laceration to his forehead from the second blow of the claw hammer. 17When the applicant was spoken to by police, he said that he visited the unit with the hammer with the intention of bashing on the door to annoy Mr O'Connor. The applicant gave a history to the police of disputes with Mr O'Connor, apparently stemming from noises emanating from Mr O'Connor's unit, which was located directly above the applicant's unit. 18The applicant was arrested on 1 February 2009 and charged with the offences which are now the subject of these proceedings. Bail was refused. 19On 27 November 2009, in the District Court of NSW, the applicant entered pleas of guilty to the two offences.

Applicant's Submission on Sentence 20The applicant, as I have said earlier, agreed with the facts, a summary of which is set out above. He did not give evidence on the sentence hearing, although he relied upon two reports of Professor David Greenberg, dated 4 March 2010 and 28 April 2010 respectively. 21In addition, he relied upon a letter from the Mount Druitt College of the Western Sydney Institute which indicated his achievements in metal fabrication and welding studies whilst in custody. 22The reports of Professor Greenberg provided significant material about the applicant's subjective circumstances. Professor Greenberg concluded that the applicant had a diagnosis of chronic paranoid schizophrenia associated with a chronic and persistent history of poly-substance abuse/dependence. 23According to the history which the applicant gave Professor Greenberg, he began to abuse alcohol and various illicit substances from the age of 14 years. He disclosed a chronic and persistent pattern of use of those substances over his adolescent and adult lifetime. He told Professor Greenberg that he had had multiple admissions to various psychiatric hospitals for his psychiatric illness and had various forms of treatment including antipsychotic medication and Electro-convulsive Therapy on at least twelve occasions. 24Professor Greenberg concluded on 4 March 2010 that the applicant's mental illness "... may have played an indirect role in the commission of the offences for which he is currently facing charges ". 25The applicant also disclosed a history of persistent use of cannabis. At the time he committed the offences the applicant was taking methadone for a heroin addiction. 26It was these subjective circumstances, and the role which the applicant's mental illness played in the commission of the offence, that were the principal subject of the submissions made to the sentencing judge by the applicant. 27As well, Professor Greenberg's opinion on 28 April 2010 to the following effect: "... it is imperative that Mr Weir remains abstinent from alcohol and illicit substances for an indefinite period. He may benefit from drug and alcohol counselling, and possibly anger management counselling with regard to his personality difficulties. It is imperative that he remains compliant with all psychiatric medication and psychiatric follow-up appointments with his treating psychiatrist" was also pressed upon his Honour, the sentencing judge, as being a relevant consideration, in particular, when considering the extent of the non-parole period. 28The applicant acknowledged the existence of his relatively lengthy criminal history and submitted that he had not previously spent any significant time in custody.

Remarks on Sentence 29The sentence was delivered by King DCJ on 17 June 2010. 30His Honour recounted fully the relevant facts and circumstances which had been agreed and the nature of the offences. 31His Honour found that offence of recklessly causing grievous bodily harm fell within the mid-range of objective seriousness. He found that the offence of intentionally or recklessly destroying property was at the lowest end of the scale of seriousness and would ordinarily fall within the jurisdiction of the Local Court. 32He recounted the applicant's subjective circumstances and noted in particular, that there was clear evidence that the applicant was suffering from a mental illness which required treatment and supervision, and also that the applicant's custody in respect of the matter would be his first significant period of custody. 33His Honour had regard to the plea of guilty and the time at which it was made. He determined that a discount in the order of 10 per cent was appropriate. 34His Honour declined to find that the applicant had expressed any genuine remorse or contrition, and he also said that he was not inclined to find that there was a good prospect of rehabilitation. However, his Honour did find that if the applicant received effective treatment, that it may substantially reduce the risk of reoffending. 35His Honour noted that the applicant's mental illness made him "... an inappropriate vehicle for general deterrence and may mean that a custodial sentence would weigh more heavily on him than others ... ". 36His Honour having reviewed all of the circumstances then said this to the applicant: "You are convicted in respect of each of the two offences. In respect of the offence of recklessly causing grievous bodily harm, after taking into account the matters referred to and some rounding down in favour of the offender, the term of the sentence will be 4 years. The Court finds special circumstances as this is the offender's first substantial period of imprisonment and also as a result of the offender suffering from a mental illness requiring supervision and treatment. Special circumstances warrant the varying of the statutory relationship between the non-parole period and the balance of term to a substantial degree. The non-parole period will be one year and six months commencing from the date on which the offender went into custody on 1 February 2009. It will expire on 31 July 2010. The balance of term is two years and six months commencing on 1 August 2010 and expiring on 31 January 2013. ... I recommend that when the offender is released on parole he be subject to the very close supervision of the Probation and Parole Service for the balance of term or such period as is deemed appropriate by that service, that while on parole he accept and obey all reasonable directions from the service in relation to psychiatric assessment and/or treatment, including medication and also such directions as to any counselling or treatment in respect of drugs - that is, prohibited drugs - and/or alcohol. I also recommend that while the subject of supervision by the Probation and Parole Service, that he be required to participate in compulsory urinalysis. In respect of the offence of intentionally or recklessly destroying property, the offender is sentenced to a period of imprisonment of three months fixed term to be entirely concurrent with the last sentence, and to commence on 1 February 2009 and expire on 30 April 2009."

Ground of Appeal 37As indicated earlier, there is only one ground of appeal. It is in the following form: "The applicant was denied ... procedural fairness in that the sentencing judge failed to warn those acting for him that he proposed to impose a sentence longer than that indicated during the proceedings on sentence." 38In order to understand the submissions on this application, it is necessary to examine, in some detail, what transpired during the sentencing proceedings. It will be necessary to set out and refer to the transcript of what occurred. 39The sentencing proceedings took place over a number of days. 40The first occasion was 4 February 2010. In the course of the submissions on that day, the appropriateness of having a report as to the applicant's psychiatric condition emerged. The proceedings were accordingly adjourned. 41The proceedings resumed on Friday, 5 March 2010 when the first expert report of Professor Greenberg, dated 4 March 2010, was tendered and admitted without objection. The proceedings were again adjourned and resumed on 1 April 2010. 42The proceedings were then adjourned until Wednesday, 28 April 2010 by which time the second report of Professor Greenberg had been obtained and was admitted without objection. 43In the course of the submissions on this final occasion, his Honour determined that it was appropriate to directly interrogate the applicant with respect to two issues, namely, whether he adhered to his pleas of guilty in respect of the two offences and, secondly, whether he agreed that the facts stated in the document labelled "Agreed Facts", which had been settled between the lawyers for the Crown and the applicant, were true and correct. 44The applicant indicated directly to his Honour that he adhered to the pleas of guilty and that he accepted the correctness and accuracy of the statement of facts. 45The Crown then made submissions to his Honour in which it was conceded that, having regard to the contents of the reports of Professor Greenberg, that the sentencing judge would be entitled, pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 to mitigate the penalty which he would have otherwise have imposed by reason of the applicant's mental health illness or disorder. The Crown submitted that it was open to the sentencing judge to reduce the moral culpability of the applicant by reason of that mental illness, that he could reduce the importance of general deterrence when imposing a sentence, and that if there was any issue about the behaviour of the applicant upon release raised as a consequence of the contents of the report of Professor Greenberg, it was open to his Honour to impose significant conditions to ensure that the applicant was properly supervised during his period of parole. 46The applicant's lawyer commenced to make submissions. He first turned to handing up a number of decisions, which he said were both of relevance and of assistance to the sentencing judge. 47The applicant's lawyer then commenced to make substantive submissions by drawing to his Honour's attention to the time which the applicant had already served in custody. As he commenced to do so, the lawyer appearing for the Crown interrupted, appropriately, to inform his Honour that the period of time in custody was 14 months and 28 days. The applicant's lawyer agreed. He then commenced to make further submissions at which point his Honour interrupted him and said: "His Honour: Mr Kumarasinne, I am intending to return to the trial at 11.30 and I don't anticipate that I am going to be able to complete sentencing because of the material that I need to cover for Mr Weir today. I will express a tentative view because I haven't yet had the opportunity to fully consider the cases and material that has been presented today. However, off the cuff considering the matters that have been raised the facts, all of which I have read, including the reports re-read now on several occasions because of the several times it has been to Court and in fact read completely again this morning. My tentative view is that I would have to sentence Mr Weir to a period of full time custody, considering that the standard non-parole period is still relevant even allowing for the matters at least as a guideline, or any other appropriate phrase to refer to it. My current view is that I would be falling into appealable error if I provided at the absolute minimum anything less than an 18 months non-parole period, with a total term taking into account the need for Mr Weir's ongoing medication and assistance in relation to a number of aspects a total sentence of three years. That is my tentative view as to the best that is available to the Court. If you disagree with that you would need to persuade me. If you do not disagree with that then I will put the matter over to another date and give judgment on that date, not binding myself to that actual sentence but considering it highly likely that that would be the sentence that I would impose in relation to the recklessly wounding charge. Would you like to discuss that with your client." 48The applicant's lawyer then attempted to make submissions about whether the sentence which the learned sentencing judge had indicated was too harsh a penalty. By way of context, I note that on an earlier occasion, in the course of submissions, it had been submitted on behalf of the applicant, that he should be sentenced to a period in custody finishing on the day that the submissions were being made. 49Further discussion between the applicant's lawyer and the sentencing judge ensued to this effect: "His Honour: ... I would be inclined to the view that it would fall within the mid range of objective seriousness for the standard non-parole offence. Kumarasinne: Your Honour ... His Honour: Mr Kumarasinne the other thing is what I think is important in relation to your client is that he has recently started medication, I think there needs to be, although I cannot increase the sentence, that I would impose, but clearly he needs to be stabilised on a medical regime before he is released and ... Kumarasinne: Except your Honour again what I laboured to say to your Honour is that because of that underlying, or certainly your Honour it is not a ... His Honour: Well those underlying matters are the only reason that I come down to that tentative figure, as I said my current view is that to go beyond that would be appellable error. I am reluctant to ask the Crown to comment on that, but ... Kumarasinne: I would be grateful your Honour." 50Ms Paul, who was then appearing for the Crown, apparently, without reluctance, then said this: "Consistent with the decision of Thawer that I have provided your Honour's views are shared by the Crown on the basis of that decision, because if your Honour adjusts for the matters and makes the findings as submitted are available by the Crown, much lower than what your Honour has suggested does become problematic without binding the Crown." 51Thawer, which the Crown lawyer mentioned, is a decision of this Court: R v Thawer [2009] NSWCCA 158. That decision concerned a Crown appeal against the manifest inadequacy of a 16 month suspended sentence imposed for an offence against s 35(2) of the Crimes Act , where there had been a stabbing attack on a victim by an offender who was suffering from a schizophrenic illness. 52This Court held that a suspended sentence was manifestly inadequate, and resentenced the offender to a term of imprisonment which consisted of a 16 month non-parole period and balance term of 30 months. 53The sentencing judge invited the applicant's lawyer to continue with his submissions. The applicant's lawyer then asked if he could "... see Mr Weir and explain to him what is transpiring between your Honour and myself and the Crown, obviously in his presence ". 54A further relatively short exchange occurred between the applicant's lawyer and the sentencing judge where the applicant's lawyer made it plain that what he was submitting to the sentencing judge was that a lesser sentence than the judge had indicated was appropriate. 55At the conclusion of those submissions, the applicant's lawyer then asked his Honour for a short adjournment so he could discuss what had occurred with his client. His client was taken down to the custodial facilities below the Court and there had a conference with his lawyer. 56Upon return to Court, the following exchange occurred: "Kumarasinne: Thank you your Honour for granting me that time for a conference with Mr Weir, does your Honour want him brought upstairs, he is quite happy your Honour, I explained to him what is going to happen now and ... His Honour: I think he should come up. Kumarasinne: Your Honour while he is not here, would 17 June, your Honour is sitting at Campbelltown, I'm quite happy to come to Campbelltown because I'm in the western region. His Honour: Ms Paul would you have left the service by then? Paul: Yes your Honour, I would need to ask to be excused. His Honour: Yes that would be fine. Kumarasinne: Mr Weir is now before the Court. His Honour: Yes anything further Mr Kumarasinne? Kumarasinne: No your Honour I certainly can't take the matter any further. His Honour: Ms Paul I think the position is actually because of all the adjournments, you've never in fact made any submissions other than the ones you made this morning effectively? Paul: That's correct your Honour, other than to provide your Honour with particular authorities in terms of an appropriate sentencing range. His Honour: Do you feel there is anything you need to particularly highlight for the Court? Paul: No your Honour in light of those authorities I think they provide reasonable assistance to your Honour. His Honour: Thank you ..." 57There was then a discussion about the date when the plea of guilty had first been entered. 58This was followed by a discussion about what sentence ought be imposed with respect to the second offence and his Honour in respect of that offence then said: "His Honour: And in those circumstances Mr Kumarasinne so your client doesn't go away wondering whatever I do in respect of the primary count I will impose a concurrent sentence in respect of the damage to the door, and there is no request for a compensation order is there. I note the facts say there is $800 worth of damage but that clearly must relate to the damage inflicted over time rather than the one occasioned." 59The following exchange then occurred: "Kumarasinne: Your Honour for the record, your Honour I have completed my submissions to you. His Honour: Then the matter will be adjourned to Campbelltown for sentence on Thursday 17 June 2010, bail not applied for is refused. I make a s 77 order and I think that completes everything". 60The Court has not been provided with the transcript of 17 June 2010, although the Court has been provided with the transcript of the remarks on sentence. It is not suggested that there was any exchange on that day before the sentence was imposed which was of any relevance to the proceedings. 61In the present context, and in the absence of any relevant exchange before the sentence was imposed, it is appropriate to set out what occurred at the conclusion of the judge's remarks. 62Having pronounced sentence, the following exchange then occurred: "His Honour: Yes, is there any matter arising, Mr Kumarasinne, Madam Crown? Kumarasinne: No your Honour. Thank you very much. Hallett: No your Honour. His Honour: Mr Weir, if you would go with - well Mr Kumarasinne you are going to go down ... Kumarasinne: I will certainly go and explain all this to him." 63It is to be observed that although a period of a little over six weeks had passed since the final submission, Mr Kumarasinne, did not draw his Honour's attention at the conclusion of his remarks on sentencing to the discrepancy between the sentence which was imposed and the sentence which the applicant argues had been foreshadowed on the earlier occasion.

Relevant Legal Principles 64It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264. 65The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose. 66The 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]. 67One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18].

Was there a Denial of Procedural Fairness? 68The applicant claims that he was denied the opportunity to make any additional submissions to the sentencing judge in opposition to a sentence greater than that indicated by the sentencing judge. He submits that as a consequence the balance of his term of imprisonment which he faces is an additional 12 months. This he argues, is clearly a breach of the dictates of procedural fairness with the result which is manifestly unfair. 69I agree that in the circumstances described above that there has been a breach of procedural fairness. The sentencing judge included in his remarks on a number of occasions the phrase "... my tentative view ...". Ordinarily, such a phrase would not be taken as precluding departure from that view on a later occasion: Baroudi at [33]. 70However, in this case, within a short time there were further comments which fell from the bench which included: (a) if the counsel disagreed "... with that you would need to persuade me ..."; (b) if the counsel did not disagree with the judge's "tentative view" then "... I will put the matter over to another date and give judgment ... "; (c) the judge said that without binding himself he considered it "... highly likely that would be the sentence ...". 71These comments were immediately followed by offering the applicant's lawyer an adjournment to take his client's instructions on the question of the proposed sentence. Once the response was made that the applicant did not wish to make any further submissions, in my view, the sentencing judge was obliged to grant the applicant an opportunity to make those submissions if he determined that he was going to impose a longer sentence. This did not happen. There was a breach of procedural fairness. 72The Crown accepts that there is a breach of procedural fairness and that the applicant ought to have been given an opportunity to make further submissions by the sentencing judge before the imposition of the sentence which was actually imposed. 73The Crown submits that because the sentence actually imposed was not manifestly excessive, and fell within the range dictated by the exercise of reasonable sentencing discretion, that no unfairness has resulted. It submits, conformably with the authority of the High Court of Australia in Lam , that the application ought be dismissed.

Resulting Unfairness? 74It is convenient here to restate some conclusions which I have earlier stated. 75King DCJ imposed a lengthier sentence on the applicant than that which he had indicated he was minded to do. True it is that he had used the word "tentative" when he first expressed his view. But this was quickly followed by the expression with respect to the sentence " considering it highly likely that that would be the sentence that I would impose ". It was then followed by his giving the applicant's lawyer the opportunity of having a conference with the applicant, specifically to obtain instructions about what the judge had said. 76It is clear that the applicant's lawyer, having taken express instructions from the applicant during an adjournment, granted by King DCJ for that purpose, declined to make any further submissions for his client on sentence. He accepted, in short, that what the sentencing judge had indicated would be an appropriate exercise of the discretion of the sentencing judge. 77Six weeks later, for reasons which are not apparent on the face of the record, the sentence which was imposed did not accord with that which had been indicated and upon which the applicant's lawyer had, as he was entitled to, acted. It is unnecessary to speculate about the explanation for the difference between the sentence indicated and that which was imposed: See Button at [16]-[18]. 78That is because there has been a practical injustice and substantial unfairness in at least two respects. First, the applicant has received a longer sentence of imprisonment. True it is that the difference in what was indicated and what was imposed affected only the period that the applicant would be on parole. But this is nevertheless part of a sentence of imprisonment. The applicant during that period is constantly at risk of being returned to imprisonment if a breach of his parole occurs. It may take some time for that breach to be then dealt with by the State Parole Authority and the applicant's liberty will be lost during that period. This is not a matter of triviality. 79Secondly, if a sentence of imprisonment is of 3 years or less, then the offender is automatically released on parole at the expiry of the non-parole period determined by the sentencing judge: s 50 Crimes (Sentencing Procedure) Act . The trigger for the release is an order of the sentencing judge. If a sentence of imprisonment is longer than 3 years, the date for release on parole is determined by the State Parole Authority. Again, that difference in mechanism for release is not a trivial one. 80I am satisfied, that a real unfairness has occurred and that the applicant has demonstrated practical injustice.

Resentence 81Because of the unfairness which has occurred, the sentence imposed by King DCJ should be quashed and this Court ought to resentence the applicant. 82The Court should re-exercise the sentencing discretion, taking into account all relevant statutory requirements and sentencing principles, with the view to formulating the opinion, for the purpose of s 6(3) Criminal Appeal Act 1912 whether some lesser sentence is warranted in law: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at 287 [19]. The Court is obliged to look at the objective seriousness of the criminality involved, the subjective features of the applicant and to consider what sentence achieves the purposes of sentencing set forth in s 3A of the Crimes (Sentencing Procedure) Act . 83In addition to the material which was before the sentencing judge, the applicant swore an affidavit which was read as being relevant to any question of resentencing. 84The applicant deposed that he had been released on parole on 27 September 2010, and has been subjected to the supervision of the Probation and Parole Service since his release. 85He confirmed that he had consistently been taking the antipsychotic medication prescribed by his doctor and that in addition he had been attending meetings of groups designed to assist him to deal with his addictions and to prevent relapse to his previous lifestyle. 86He affirmed that his antipsychotic medication was not having any significant side effects and as a consequence he intended to continue to take it. 87Clearly the applicant has taken steps since his time on release to address positively the subjective issues which were in part relevant to his being brought before the Court in the first instance. His prospects of rehabilitation appear to have improved since he was before the sentencing judge and at present he remains drug free. 88The objective criminality of the offending was within the mid-range, but the applicant pleaded guilty and accordingly the standard non-parole period of 4 years was not directly applicable, but it remained of importance as a guideline or yardstick in the sentencing process. 89The applicant was allowed a discount of 10 per cent for his plea of guilty. No submission was put to this Court that that was an inappropriate discount. 90Taking all of the relevant factors into account, the applicant should be sentenced to a term of imprisonment of 3 years which consists of a non-parole period of 18 months and a balance term of 18 months. 91That term of imprisonment should be backdated to the day upon which he entered custody, namely 1 February 2009. Accordingly, the term of imprisonment will expire on 31 January 2012. 92I note that the applicant has already served the non-parole period. The effect of this sentence is that the applicant's parole period will continue until 31 January 2012.

Orders (1) Leave to appeal granted. (2) Appeal upheld. (3) Sentence imposed by King DCJ on 17 June 2009 in respect of an offence contrary to s 35(2) of the Crimes Act 1900 is quashed. (4) In lieu thereof the applicant is sentenced to a non-parole period of imprisonment of 1 year and 6 months to commence on 1 February 2009 and expire on 31 July 2010. The balance of term is 1 year and 6 months to commence on 1 August 2010 and expire on 31 January 2012.

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: 06 June 2011