AB v Attorney General for New South Wales

1. [1]

   HIS HONOUR: By letter dated 7 October 2020 and received in the Court on 12 October 2020, the Applicant, AB, applied for a review of sentence, pursuant to the terms of Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (hereinafter “the Appeal and Review Act”).

2. [2]

   On or about 14 October 2020, the Registrar of the Court notified the Attorney General of the application and directed the Attorney General to file and serve submissions in response within 28 days of the date of the notification. A copy of that was also sent to the Crown Solicitor’s Office.

3. [3]

   By further letter dated 18 December 2020, the Principal Registrar, having received the response of the Attorney General, directed that the applicant file any further submissions within 28 days of the date of the notification. No such submissions were filed. As notified in the last-mentioned letter, after the 28 days had elapsed, whether or not submissions in reply had been received, the matter was to be referred to a Judge of the Court.

4. [4]

   The usual practice is for a referral to occur shortly after the time limit has elapsed for the filing of submissions in reply. In accordance with the usual practice and the requirement of s 75(1) of the Appeal and Review Act, on 8 February 2021, the Chief Justice allocated the matter to me, as a Judge of the Court, to determine the application for a review.

5. [5]

   Because no submissions had been received in reply, I caused a notice to be sent to the Applicant inviting any further submission. That notice was sent on 26 February 2021.

6. [6]

   At the same time a further copy of that notice was sent to an Officer of the Correctional Facility in which the Applicant is located, requesting assistance in the delivery of the notice to the Applicant. No further submission was received within the further 28 days provided and on 4 May 2021 I caused a notice to be sent to the Applicant advising that the matter would be dealt with on the papers so far received.

Principles Applicable to a Review

1. [7]

   The provisions of s 78 of the Appeal and Review Act allow a convicted person to apply for an inquiry into a conviction or sentence. Such an application is made to the Supreme Court.

2. [8]

   In this case, by letter dated 7 October 2020, the Applicant applies for a review of the sentence, by reason of what are said to be misapprehensions or mistakes in the understanding of the Court of Criminal Appeal (hereinafter the “CCA”) when it determined the Applicant’s appeal.

3. [9]

   Once an application has been made under s 78, relevantly, the Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence or the Court may refer the whole case to the CCA to deal with as an appeal. Those actions may be taken only in circumstances where it appears that there is a doubt or question, relevantly, as to any mitigating circumstances or as to any part of the evidence in the case. [1]

4. [10]

   Further, the Court may refuse to consider or otherwise deal with an application under s 78. [2]

5. [11]

   The Appeal and Review Act sets out the circumstances in which the Court may refuse to consider or otherwise deal with an application, but the circumstances there prescribed are not exclusive and do not limit the jurisdiction of the Court to refuse to consider or otherwise deal with an application.

6. [12]

   The prescribed considerations which allow, non-exclusively, the Court to refuse to consider or otherwise deal with the application are if it appears to the Court that the matter: has been fully dealt with in proceedings giving rise to the sentence, or in proceedings on appeal from the sentence; has previously been dealt with under Pt 7 of the Appeal and Review Act; has been the subject of a right of appeal or right to apply for leave to appeal, but no such appeal has been made; or has been the subject of proceedings on appeal and the appeal has been withdrawn or the proceedings have been allowed to lapse. [3]

7. [13]

   The last two matters are inapplicable to the current application. There was a right to seek leave to appeal, which was exercised and the CCA issued judgment in relation to the appeal.

8. [14]

   The foregoing unusual discretion not to deal with an application for the reasons outlined above must be accompanied by the Court not being satisfied that there are special facts or special circumstances justifying the taking of further action.

9. [15]

   The legislature has made express that which might, in any event, arise from the terms of the legislation, namely, that the function performed by a judge of the Court in determining an application under s 78 of the Appeal and Review Act does not involve judicial proceedings or the exercise of judicial power. [4]

10. [16]

    A judge of the Court to whom the matter has been allocated, pursuant to the terms of s 75(1) of the Appeal and Review Act, is not entitled to direct an inquiry to be conducted or to refer the whole case to the CCA, unless it appears to that judge that there is a doubt or question as to, relevantly, any mitigating circumstance or to any part of the evidence in the case. In the absence of the appearance of the doubt or question, the judge of the Court has no power to refer the case or to direct an inquiry into the sentence.

11. [17]

    These matters were the subject of discussion by the Court of Appeal [5] in which the Court [6] said:

12. [18]

    On the basis of the foregoing I adopt the approach that any arguable error of law or doubt as to any issue of law or factual conclusion is sufficient to warrant referral for an inquiry and, possibly, referral to the CCA to deal with the sentence as if it were an appeal. I will act on that basis, applying the foregoing principles.

13. [19]

    There are other issues which require reciting. Notwithstanding that a judge is entitled to refuse to consider or otherwise deal with an application, such a refusal may not be performed arbitrarily or capriciously and the judge must act in good faith. [7] Further, the exercise of the discretion reposed in a judge of the Court appointed pursuant to the terms of s 75 of the Appeal and Review Act is confined by the subject matter, scope and purpose of the legislation. [8]

14. [20]

    In Brideson, the High Court said:

15. [21]

    At the very least the jurisdiction or power conferred by s 79 of the Appeal and Review Act would allow a judge to whom such a preliminary enquiry has been allocated to refuse to consider the application if the application were frivolous, vexatious, misconceived or lacking in substance. [10] Further, as is clear from the terms of s 79(3)(a)(i), such a refusal may also occur in circumstances that are akin to an abuse of process in that the matter has been fully determined and/or dealt with in regular proceedings relating to the conviction or sentence.

16. [22]

    Apart from that proposition, it is necessary, in exercising the power not to deal with the matter further or not to consider the matter to bear in mind that a judge allocated to deal with the matter under s 75 of the Appeal and Review Act is not “some sort of super legislative or administrative institution with an untrammelled mandate to pursue what it sees as the public interest”. [11]

17. [23]

    One of the aspects of the rule of law, which, for present purposes applies to administrative proceedings to be conducted judicially and in which the person is required to act judicially, is that, where a person is granted a right to make application to resolve a dispute, the jurisdiction carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. This is a fundamental element of the rule of law, requiring that every person or organisation, regardless of rank, is amenable to the jurisdiction of the courts and other public tribunals.

18. [24]

    The grant of a jurisdiction or broad discretion to refuse to exercise jurisdiction conferred is rare and ought to be exercised on a narrow basis consistent, in this case, with the transparency required in relation to criminal convictions. That is even more important in circumstances where the judge of the Court so appointed is the only basis upon which, at the time that the judge is appointed, the issue in controversy can be fully examined and considered. [12]

Grounds for Review

1. [25]

   Most of the issues raised by the Applicant in the application of 7 October 2020 are issues critical of the comments and/or findings of the CCA.

2. [26]

   The first issue is that the Applicant complains that material described by the CCA as “new evidence” was evidence supporting “existing evidence” that was not considered or included at first instance. In the course of that complaint, the Applicant also states that he was unable effectively to present his case because there were technical difficulties associated with the audio visual link. The “technical difficulties” were that there were faces of two unknown participants on the screen, which, in the letter, the Applicant complains affected his concentration so that he was unable to present the points fluently.

3. [27]

   The other aspect about which the applicant complains is that the CCA misunderstood his “motivations” for tennis coaching. Each of the issues, namely, the “new evidence” and the “motivations”, in the Applicant’s submissions, “could have resulted in a more favourable special circumstances/non-parole period finding”.

4. [28]

   The Applicant also draws attention to the comments of the sentencing judge as to the Applicant “staying silent” in circumstances where, on the Applicant’s submission he did not remain silent when it counted. The reference in the Applicant’s submission to the Applicant not remaining silent was a reference to the Applicant self-reporting to Anglicare and the Department of Child Protection on the issue of his assessment for child custody/visitation.

5. [29]

   The Applicant’s submission makes clear that the material was available at the time of the sentence hearing and not presented and complaint is made of the Applicant’s legal representatives in not presenting the evidence as part of the case conference or negotiations with the DPP. It seems that the Applicant complains also about the failure by the sentencing judge, at first instance, to take into account the fact of his self-reporting.

Procedural History

1. [30]

   The Applicant pleaded guilty to 5 offences:

   1. (1)

      Count 1: between 1 January 1996 and 30 December 1996, at Lismore Heights in the State of New South Wales, [the Applicant] did assault LC and at the time of the assault committed an act of indecency on LC, in circumstances of aggravation, namely that at the time of the offence LC was aged under the age of 16 years, being in fact aged 11 or 12 years;

   2. (2)

      Count 2: between 1 June 1997 and 1 June 1998, at Telopea in the State of New South Wales, [the applicant] did assault LC and at the time of the assault committed and act of indecency on LC, in circumstances of aggravation, namely, that at the time of the offence LC was aged under the age of 16 years, being in fact aged 13 or 14 years;

   3. (3)

      Count 3: between 1 June 1997 and 1 June 1998, at Telopea in the State of New South Wales, [the Applicant] did assault LC and at the time of the assault committed an act of indecency on LC, in circumstances of aggravation, namely, that at the time of the offence LC was aged under the age of 16 years, being in fact 13 or 14 years;

   4. (4)

      Count 4: between 1 January 1998 and 30 December 1998, at Telopea in the State of New South Wales, [the Applicant] did assault LC and at the time of the assault committed an act of indecency on LC, in circumstances of aggravation, namely, that the time of the offence LC was aged under the age of 16 years, being in fact aged 13 or 14 years; and

   5. (5)

      Count 5: between 10 February 1997 and 30 December 1997, at Eastwood in the State of New South Wales, [the Applicant] did insight TC, a person then under the age of 16 years, namely 11 years, to an act of indecency with the applicant.

2. [31]

   Apart from the offences named above, the Applicant asked the sentencing judge to take into account three further offences set out in a Form 1, namely offences of:

3. [32]

   As pointed out in the judgment of the Court of Criminal Appeal, [13] the offending in each of Counts 1 to 4 was contrary to s 61M(1) of the Crimes Act 1900 (NSW) and carried a maximum penalty of 7 years’ imprisonment. The offending in Count 5 was contrary to s 61N(1) of the Crimes Act, the maximum penalty for which was 2 years’ imprisonment. The sentencing judge expressed indicative sentences and imposed an aggregate sentence. The indicative sentences were:

4. [33]

   The sentencing judge imposed an aggregate sentence of 5 years’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment.

5. [34]

   As earlier stated, the Applicant sought leave to appeal the sentence. That appeal was heard on 10 July 2020 and judgment issued, granting leave to appeal and dismissing the appeal, on 22 July 2020.

6. [35]

   The facts that gave rise to the offences are set out in the judgment of the CCA. It is unnecessary to recite them.

7. [36]

   It is necessary to recite two paragraphs that deal with the documentary evidence upon which the Applicant sought to rely on the appeal and the non-receipt of which is the subject of complaint by the Applicant now before the Court. The CCA said:

8. [37]

   In determining that the grounds for admission of the evidence sought to be relied upon were not established, the CCA relied upon the judgment in Goodwin. [15] In Goodwin, Hunt J described the practice of the Court and in particular remarked that it is not customary practice for the CCA to receive fresh evidence on sentence appeals. [16]

9. [38]

   The material upon which the Applicant relied in his appeal was not, in the technical sense used, “fresh evidence”. In other words, the material upon which the Applicant sought to rely on his appeal was material that could, with reasonable care, have been discovered previously. [17]

10. [39]

    Moreover, as the Applicant points out in this application, the material upon which he sought to rely was not “new evidence”, but was evidence that supported or corroborated existing evidence. There are circumstances where evidence other than fresh evidence or new evidence will be admitted on appeal.

11. [40]

    The reasons for judgment in Goodwin, supra, refer to a prime example, which is where, at first instance, the incompetence of counsel or a legal representative has caused a miscarriage of justice and the additional material is sought to overcome that injustice or incompetence.

12. [41]

    The Applicant relies upon the fact that the evidence obtained by telephone intercepts contains statements to the effect that the Applicant self-reported to Anglicare and the Department of Child Protection and that self-reporting was not taken into account either by the sentencing judge or by the CCA. However, the telephone intercepts do not go so far.

13. [42]

    The telephone intercepts merely evidence an assertion by the Applicant that such self-reporting occurred. In the absence of evidence directly attesting to that self-reporting, an assertion to a victim that self-reporting occurred, during the course of an apology and/or explanation, would not be taken as evidence of the fact represented.

14. [43]

    Further, the evidence of self-reporting to Anglicare and the Department of Child Protection is significantly different from the allegation that the Applicant stayed silent, in relation to the charges against him and the conduct in question, insofar as it affected his remorse and the trauma suffered by the victim. Further again, the “self-reporting” to Anglicare and the Department were noted by the sentencing judge.

Consideration

1. [44]

   Criminal sentencing is an exercise of discretion. A sentence, being the discretionary exercise of the sentencing judge, is capable of being overturned on a limited basis.

2. [45]

   That basis was described by the High Court in House v the King. [18] That exercise of discretion may be overturned if the sentencing judge acts upon a wrong principle; takes into account extraneous or irrelevant matters; fails to take into account mandatory considerations; or mistakes the facts.

3. [46]

   If such an error occurs, then a court on appeal will exercise its own discretion and sentence afresh. Over and above identifiable errors of that kind, the sentence may have been reached or imposed, in circumstances where it is not clear that identifiable error has been committed, but the sentence is unreasonable or plainly unjust. In those circumstances, a court on appeal may conclude that there has been some manifest error or a failure to exercise the discretion properly. [19]

4. [47]

   As already stated, s 78 of the Appeal and Review Act allows an application for an inquiry into a sentence. It does not allow or provide an avenue for an inquiry into the judgment of the Court of Criminal Appeal that did not result in the imposition of a sentence. This judgment of the CCA resulted in orders being made whereby leave to appeal was granted and the appeal was dismissed.

5. [48]

   The extant or operative sentence is the sentence imposed by the District Court on the Applicant on 11 April 2019. That which has been raised in the application does not, on its face, appear to suggest doubt or a question as to the sentence imposed by the District Court. Further, that sentence has been the subject of analysis by the CCA on a full appeal on the sentence imposed. Further again, the sentence imposed is manifestly reasonable and within range.

6. [49]

   This application seeks to deal with matters that were fully considered in the appeal. [20] Further, it does not appear to the Court that there is any question or doubt as to any mitigating circumstance or evidence.

7. [50]

   In the circumstances, pursuant to the provisions of s 79(3), the Court refuses to consider or otherwise deal with the application. The Court issues the following decision:

   1. (1)

      Pursuant to the provisions of s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), the Court refuses to consider or otherwise deal with the application further;

   2. (2)

      There are no special facts or circumstances prohibiting the exercise of discretion under s 79(3) of the aforesaid Act;

   3. (3)

      To the extent otherwise required, the application is dismissed.