Murray v R

1. [1]

   BASTEN JA: On 7 August 2013 the applicant, Adam Scott Murray, was sentenced to imprisonment for an extended period. On the first day of his trial he had entered a plea of guilty to a count of discharging a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW). The victim, a young woman, was shot in the face, with a bullet lodging in her brain. Remarkably, she survived.

2. [2]

   The offence carried a maximum penalty of 25 years imprisonment. The sentencing judge, Conlon DCJ, assessed the objective circumstances of the offending as perhaps not in the worst category of such cases, but nevertheless towards the upper end of the range. He imposed a sentence of 20 years imprisonment with a non-parole period of 15 years.

3. [3]

   The application for leave to appeal was founded upon two grounds. These were, (a) the failure of the sentencing judge to disqualify himself for apprehended bias, and (b) a denial of procedural fairness in failing to give notice of his intention to refuse any discount for the utilitarian value of the plea of guilty.

4. [4]

   It is not necessary to repeat the circumstances of the offending in order to deal with those grounds. Indeed, it is preferable that this Court not engage with the sentencing exercise as the appeal should be upheld and the matter returned to the District Court for sentencing. However, it should be added that, in circumstances where the applicant sought to have this Court resentence him, no criticism was made of the reasoning of the sentencing judge, nor of his evaluative assessment of the seriousness of the criminality.

Apprehension of bias

1. [5]

   The original indictment contained two charges, one being a charge of shooting with intent to murder, to which the applicant pleaded not guilty. He proffered a plea of guilty to the alternative charge noted above on the first day fixed for the trial, being 5 February 2013, at which time the prosecution accepted the plea in full satisfaction of the indictment. On that day, the prosecutor indicated that a brief statement of facts had been prepared so that “a conviction can be recorded at this point.” [1] That happened. [2] Thereafter, the offender was on remand, bail refused, awaiting sentence.

2. [6]

   The matter came back before the sentencing judge on the following day, at which time a number of documents were tendered. After further adjournments, the matter came before the Court again on 1 August 2013. In the meantime, the judge had had an opportunity to review the criminal record of the offender. At the adjourned hearing he noted that after serving a non-parole period of five years he had been released on parole on 1 May 2011. He was then charged with an offence committed on 30 May 2011 (of which he was later found not guilty), returned to custody on 30 August 2011 to serve a balance of parole, but was again released on 20 October 2011, [3] some three months before the offence on which he was to be sentenced. The judge, clearly puzzled by this history, but wanting to know his status as to conditional liberty at the time of committing the fresh offence, invited the prosecutor to seek further information from the Parole Board.

3. [7]

   The sentencing hearing was not completed on 1 August 2013 but was adjourned again so that further documents could be obtained, in particular in relation to the state of the victim following further surgery.

4. [8]

   The adjournment being agreed, the prosecutor nevertheless proceeded with submissions on sentence, in the course of which the following exchange took place between the Court and the prosecutor (Mr Fox). [4]

5. [9]

   When the matter came back before the Court on 6 August 2013, the prosecutor tendered some further documents outlining the victim’s medical circumstances. The following exchange then took place between Mr Phelan, appearing for the offender, and the Court. [7]

6. [10]

   The ground of appeal raises the question whether the judge was correct in declining to recuse himself on the application of the offender. The principles to be applied by the Court in addressing that question are not in doubt, though their application is not always a straightforward matter. The test is whether a fair-minded lay observer, knowing the circumstances of the case, might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issue to be determined. [8]

7. [11]

   This test was affirmed by the High Court in British American Tobacco Australia Services Ltd v Laurie. [9] French CJ in Laurie, after referring to the test as articulated in Ebner v Official Trustee in Bankruptcy, [10] continued: [11]

8. [12]

   These steps are readily satisfied in the present case. That which might have led the judge to sentence the offender, otherwise than on the merits, was his own firmly held belief that the offender was guilty of an offence for which he had been acquitted, together with the judge’s own articulated difficulty in placing that matter to one side. Secondly, the connection with the sentencing exercise was not in doubt: the charge of which the offender had been acquitted was one involving a violent attack on a person whilst at home, being conduct which, if committed by the offender, would readily give rise to an inference as to his dangerousness. Given the heinous nature of the offending for which sentence was to be imposed, the need to have regard to the protection of the community as a purpose of sentencing, [12] and the important aggravating circumstance of having a record of previous convictions for serious personal violence offences, [13] all combined to make the commission of such an offence, not long before the offending for which he was to be sentenced, highly relevant and detrimental to his interests.

9. [13]

   Two peripheral issues should be noted. First, although there was a suggestion in the first passage set out above that the judge had sentenced the offender for the 2007 offences, that was neither the basis of the apprehension of bias, nor, indeed, was the correctness of that suggestion known to the parties, nor sought to be checked by them. Secondly, the fact that the judge had sat on a trial of the accused which resulted in an acquittal was not itself relied upon as warranting a reasonable apprehension of bias. Rather, it was the firmly expressed view that, despite acquittal by the jury, the judge was himself satisfied beyond reasonable doubt as to his guilt and the difficulty in putting that view aside.

10. [14]

    Each case must be addressed on its own facts and the test applied, objectively, by the court before which the question is raised. [14] The issue is certainly not determined by the view expressed by the trial judge. As explained in Laurie in the joint judgment of Heydon, Kiefel and Bell JJ: [15]

11. [15]

    In Laurie, the fact in issue had already been the subject of a finding by the trial judge in earlier, related, proceedings. As the joint reasons said, such a view was to be contrasted with “the incautious remark or expression of a tentative opinion”. [16] The present case does not fit precisely into either category. Judge Conlon had not himself been determining an issue when hearing the earlier trial: the question of guilt had been for the jury, not for the judge. On the other hand, he revealed, not inappropriately, that he formed and retained a clear view as to the offender’s guilt, not a tentative opinion or an opinion inaccurately conveyed by an incautious remark.

12. [16]

    Reading the whole of the relevant material, with particular reference to the passages set out above, a lay person sitting in the court might well have considered that the judge might not be able to put his recent experience of the applicant firmly out of his mind in considering the appropriate sentence, despite his affirmed intention to do so. These circumstances required the judge to step aside and allow the applicant to be sentenced by another judge. There was no question of urgency: the sentencing process had already proceeded in a somewhat desultory fashion, though the delays were for understandable reasons. No great inconvenience would have been caused by a further delay, to allow the matter to be listed before another judge of the Court.

13. [17]

    Ground 1 should be upheld: the sentence imposed must be set aside.

Procedural fairness

1. [18]

   The second ground of appeal was concerned with the refusal of the sentencing judge to allow any discount for the utilitarian value of the guilty plea, which avoided the need for a trial. Although a court “must take into account” the fact that the offender has pleaded guilty, when passing sentence, [17] it was common ground that a trial judge might, in appropriate circumstances, decline to allow a discount. Nor was it suggested that this was a case in which the judge necessarily erred in declining to reduce the sentence on account of the guilty plea. Rather, the complaint was that such a course was quite unusual and that if minded to adopt that approach, the judge should have given forewarning to the parties so that each (and in particular the offender) had an opportunity to make submissions as to why that course should not be adopted.

2. [19]

   Although reference was made to Parker v Director of Public Prosecutions, [18] this case did not fall squarely within the principle enunciated in that decision. That case involved a resentencing on appeal when the District Court judge had imposed on the appellant a more severe penalty than that imposed at trial, a course within his power, without alerting the appellant to the possibility that he might take that course. Nor is it necessary to decide in the present case whether the established practice of granting a reduction for a plea of guilty would, by itself, be sufficient to render denial of a reduction unfair where a warning was not given. This case has additional features.

3. [20]

   The first additional feature was that the prosecutor provided written submissions prior to the final day of the sentencing hearing [19] in which he expressly stated that:

4. [21]

   Secondly, that view was reiterated by the prosecutor in the course of oral submissions on 1 August 2013. [20] Thirdly, counsel for the offender expressly noted the concession by the prosecutor, limiting his submission to the proposition that, the charge itself having been changed at a late stage, 15% was the appropriate reduction. [21]

5. [22]

   The matter clearly proceeded before the sentencing judge on the basis, not merely that a reduction was appropriate, but with a measure of agreement as to the extent of the reduction. It goes without saying that the judge was not bound by the approach adopted by the parties; nevertheless, the parties were entitled to act on the basis that, upon what might have been considered an uncontroversial matter, a warning would have been given were the judge considering departing from the common and conventional approach.

6. [23]

   Assuming that the Court were persuaded that some reduction was appropriate and assuming that the sentence was otherwise unaffected, the sentence might be reduced by between two and three years. Self-evidently, that is not an insignificant period; it would also affect the non-parole period proportionately. If this were the only error, it would warrant a grant of leave to appeal.

7. [24]

   Again, if this were the only issue, it might well be appropriate for this Court to determine for itself what reduction, if any, should be allowed. However, it is not the only issue: the conclusion that, because of a reasonable apprehension of bias, the judge should not have determined the matter, there has been no proper and regular sentencing. Just as cases where the judgment affected is a conviction do not engage the proviso with respect to a substantial miscarriage of justice, so, with respect to sentence, no question arises as to whether the Court considers that no less severe sentence was warranted at law, for the purposes of the Criminal Appeal Act 1912 (NSW), s 6(3).

8. [25]

   In Lee v The Queen [22] the High Court stated:

9. [26]

   The applicant is entitled to be sentenced according to law. The sentencing process having been flawed in a fundamental respect, that has not yet happened. The matter should be remitted to the District Court to allow that process to be validly undertaken, following which the applicant will have the usual right to seek leave to appeal, if grounds are available.

Amended notice of appeal

1. [27]

   A question was raised in the course of the hearing of the appeal as to whether the applicant needed to amend his notice of appeal. He sought leave to do so to add a ground that “the sentence imposed was unreasonable or plainly unjust.” It is not necessary to address that ground, nor indeed to grant leave to amend. The underlying basis for the application appears to have been a concern that if the applicant were successful on ground 1, there would have been no valid sentencing process and therefore nothing to appeal from. How the proposed amendment would vary that situation was by no means clear. In any event, the presumption was based on a fallacy. As pithily explained by Gageler J in State of New South Wales v Kable: [26]

2. [28]

   The District Court of New South Wales is not a superior court of record. As Gageler J further pointed out: [27]

3. [29]

   There was no suggestion that an invalid order of an inferior court cannot be the subject of an appeal. As Lord Wilberforce noted in Calvin v Carr, [28] in discussing whether a decision made contrary to procedural fairness was void, “where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent.” That passage was cited by Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [29] stating:

4. [30]

   The characterisation of the decision in the present case as a nullity or void would be equally distracting. There is no doubt that, having been convicted and sentenced, the applicant had a right to appeal “with leave of the Court against the sentence passed on the person’s conviction”, pursuant to s 5(1)(c) of the Criminal Appeal Act. Section 6(3) states what the Court may do on an appeal against sentence: it does not restrict in any way the grounds upon which an appeal may be brought, nor does it expose the full extent of the orders available to the court.

Orders

1. [31]

   The Court should make the following orders:

2. [32]

   SIMPSON J: I have read in draft the judgments of Basten JA and Adamson J. I agree with Basten JA that there is substance in both grounds of appeal, and that the sentence imposed involved a denial of procedural fairness which calls for it to be set aside.

3. [33]

   Although I have not (and no other member of the Court has) concluded, within the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW), that "some other sentence, whether more or less severe is warranted in law and should have been passed", s 12(2) of the same Act permits the Court to remit "a matter or issue" to a court of trial for determination. I agree that that is the appropriate course to take in this case.

4. [34]

   ADAMSON J: I have had the benefit of reading the reasons of Basten JA in draft. I agree with the orders his Honour proposes and with his Honour’s reasons in [1]-[3], the first two sentences of [4] and [5]-[17]. I would prefer not to express any view on the second ground of appeal as the matter will be remitted for sentence.

5. [35]

   The amendment to the notice of appeal referred to in [27] was sought and granted during the course of oral argument. I understood that it was sought solely to remove any doubt that the sentence was being challenged. As I am satisfied that this Court has jurisdiction to make the orders sought, I do not consider it to be necessary to address this matter further.