Application of Ainsley Whitney

1. [1]

   THE COURT:

Introduction

1. [2]

   On 15 April 2020, this Court as presently constituted delivered judgment and dismissed the appeal against sentence of Mr Shane Patrick. At the same time, it upheld the appeal against sentence of Mr Ainsley Whitney (the applicant), but only by correcting a slip at first instance with regard to backdate: see Patrick v R; Whitney v R [2020] NSWCCA 63.

2. [3]

   This judgment assumes familiarity with that earlier judgment. To recap briefly, nevertheless, to permit convenient understanding: those determinations of this Court related to the sentences imposed by Colefax SC DCJ on 30 January 2019.

3. [4]

   Mr Patrick and the applicant had each pleaded guilty to an offence of reckless wounding in company, which they had committed with each other. Mr Patrick also pleaded guilty to knowingly taking part in the supply of a prohibited drug and the possession of an unauthorised firearm.

4. [5]

   The undisputed background to the wounding offence was that Mr Patrick and the applicant agreed to evict the victim, the female romantic partner of their friend (referred to in the original judgment as Mr Argus, a pseudonym), from her home. In the result, Mr Patrick, armed with a steel chain with a small metal padlock attached to one end, swung the chain and hit the victim in the head, causing severe pain and bleeding, whilst the applicant was present as an accessory.

5. [6]

   In the event, the learned sentencing judge imposed upon the applicant for that single offence a head sentence of imprisonment for four years, with a non-parole period of three years upon the applicant.

6. [7]

   The applicant sought leave to appeal against his sentence on the following five grounds:

7. [8]

   As we have said, his appeal was upheld solely in relation to ground 4, an error that was conceded by the Crown. No other ground was upheld.

8. [9]

   Accordingly, the orders made by this Court with regard to the applicant were as follows:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Uphold the appeal.

   3. (3)

      Quash the sentence imposed by Judge Colefax SC on 30 January 2019.

   4. (4)

      In substitution, Ainsley Whitney is sentenced to a non-parole period of three years to commence on 1 October 2018 and expire on 30 September 2021, to be followed by a parole period of one year, to expire on 30 September 2022.

   5. (5)

      The first date upon which it appears that Mr Whitney is eligible for possible release to parole is 30 September 2021.

Further application

1. [10]

   By application dated 20 April 2020, and therefore within the 14 day period for the making of an application after the entering of orders, the applicant sought leave pursuant to r 50C of the Criminal Appeal Rules (NSW) to apply for the following orders:

   1. (1)

      Grant the applicant leave to apply to set aside or vary the judgment given on 15 April 2020;

   2. (2)

      Set aside the judgment of the 15 April 2020;

   3. (3)

      Reconsider the merits of the appeal utilising only the factual material contained in the Revised Statement of Facts on Sentence.

2. [11]

   The thrust of Mr Whitney’s application is the proposition that the Court wrongly took into account factual material that was not, in truth, part of the evidence before the sentencing judge, and that was not relied upon by the Crown. It was that error that is said to have had a material effect on the determination of the appeal with regard to the applicant.

3. [12]

   Mr Patrick has been notified of this further application, but has not sought to be included within it. Accordingly, his position is not discussed further.

4. [13]

   Before turning to the submissions made in support of the application, it is convenient to set out the relevant events at first instance, the salient differences between the two versions of the agreed facts placed before the sentencing judge, and the relevant portions of the leading judgment of this Court relied upon by the applicant.

Events at first instance

1. [14]

   At first instance there was an original Statement of Agreed Facts (“the superseded Facts”) that was admitted as part of the Crown case on sentence and become Exhibit A. However, the sentencing judge expressed concern regarding the adequacy of the document. As a result, a further document entitled Revised Statement of Facts on Sentence (“the correct Facts”) was placed before the sentencing Court, and admitted as Exhibit E. It superseded the earlier document.

The superseded Facts

1. [15]

   The superseded Facts at [21]-[43] recounted a number of text messages that passed between Mr Patrick, the applicant, and Mr Argus (in that document known as “Witness A”) in relation to the decision to evict the victim from the premises she shared with Mr Argus, prior to the commission of the offence (AB p 48-52).

2. [16]

   One of these messages referred to their intention to evict the victim, which is expressed by a text from Mr Patrick to Mr Argus as “Tell her pack what hers take everything you gave her see you soon bro”. There is also discussion of the possible use of force when doing so in a text message from the applicant to Mr Argus:

3. [17]

   It is the explicit terms of the text messages themselves that counsel for the applicant contends were relied upon erroneously by this Court in determining the appeal.

The correct Facts

1. [18]

   The salient parts of the correct Facts about the question of planning and motivation for the offence of reckless wounding in company prior to its occurrence are as follows:

2. [19]

   The offending was further described in [11]-[15] of the correct Facts:

References to the superseded Facts

1. [20]

   The superseded Facts were included in the appeal papers along with the correct Facts, despite their supersession. In the judgment of Button J (Meagher JA and Harrison J agreeing), reference was made at [17], [66], [78], [81], and [88] to the text messages derived from the superseded Facts.

2. [21]

   We now set out those portions of the judgment of Button J that refer directly or indirectly to the superseded Facts, and upon which counsel for the applicant relies as significant.

3. [22]

   The judgment of Button J also made mention of the text messages in [78] when summarising the submissions of the applicant in support of his appeal. Although the paragraph was not relied upon by counsel for the applicant to demonstrate potential misapprehension of fact, we include it here for the sake of completeness. The paragraph reads as follows:

4. [23]

   Finally, [95] of the judgment of Button J arguably referred indirectly to the text messages, when it spoke of the motivation for the commission of the offence. Although it was not explicitly relied upon by counsel for the applicant, we include it also:

Submissions of the applicant

1. [24]

   In written submissions, counsel for the applicant first submitted that the application appropriately engages r 50C(2) because, as we have said, it has been made within 14 days of the date of the appeal judgment.

2. [25]

   He submitted that the Court had erroneously taken into account factual matters that were neither agreed nor relied upon, with the effect that the specific text messages displayed a higher degree of planning and criminality than that which had, in truth, been accepted by both parties at first instance.

3. [26]

   He also submitted that the specific factual matter was patently relied upon at [17] of the judgment of Button J. That paragraph, which appears under the heading “Objective features of the shared reckless wounding in company”, is set out above at [21].

4. [27]

   Furthermore, counsel for the applicant invited attention to the discussion of the text messages in [66], [81], and [88] of the judgment when considering the issues of planning, objective seriousness and finding of equal moral culpability with regard to grounds 1, 3 and 2 respectively.

5. [28]

   Counsel argued that those specific extracts involve a misapprehension of the facts by this Court, which cannot be attributed solely to the applicant and may have had a material effect on the decision of this Court. On that basis, it was said that the Rule is engaged, and that there should be reconsideration of the remaining grounds.

Submissions of the Crown

1. [29]

   The Crown accepted that the precise content of the text messages was not to be relied upon by either party at sentence or on the appeal. Even so, it was submitted, the correct Facts confirmed that the text messages were sent, that they involved a plan to evict the victim from her home, and that it was to be achieved by “inappropriate” or “untoward” means.

2. [30]

   Furthermore, since the correct Facts confirmed the existence, meaning and purpose of those text messages, it was submitted that the findings of this Court in [66], [81], and [88] were consistent with the correct Facts.

3. [31]

   As a result, it was said that the factual error had had no material effect on the outcome of the appeal and therefore, this Court should not set aside or vary the orders previously made with regard to the applicant.

Determination

1. [32]

   It is first convenient to set out the entirety of r 50C:

2. [33]

   The relevant principles are well-settled. Absent statutory provision, this Court would have no power to reopen an appeal, nor entertain a further appeal, once an appeal has been heard and determined: Grierson v The King (1938) 60 CLR 431; [1938] HCA 45; Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [19]-[21].

3. [34]

   Rule 50C, however, empowers this Court to do just that, although the power is to be exercised only where there has been “some misapprehension of fact or law, not solely attributable to the applicant, which materially affected this Court’s judgment in the appeal”: Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69 at [7]; El Ali v R (No 2) [2019] NSWCCA 289 at [22].

4. [35]

   As this Court stated in Kauwenberghs v R (Cth) [2009] NSWCCA 201 at [10]:

5. [36]

   The rule does not confer jurisdiction to rehear an appeal on merits. Rather, as this Court emphasised in Application of Malcolm Potier (No 3) [2015] NSWCCA 306 at [7], “it enables the Court to reconsider and correct its orders to rectify obvious mistakes and to reflect correctly its intention at the time of making the decision in question”.

6. [37]

   It is evident from the remarks on sentence of the sentencing judge and the proceedings on sentence as a whole that the superseded Facts were not to be relied upon by the parties, and were not relied upon by the sentencing judge.

7. [38]

   There was therefore a regrettable misapprehension of fact by this Court in taking into account an aspect of the superseded Facts. And in no sense can responsibility for that error be sheeted home to either the applicant or the Crown on the appeal.

8. [39]

   The question then is whether the erroneous direct and indirect references to the contents of the text messages that appeared in the superseded Facts but not in the correct Facts materially affected the consideration of the four unsuccessful grounds of the applicant.

9. [40]

   Bearing in mind the contents of the correct Facts that set out what was intended between the three men, and the sending of text messages prior to the offence in accordance with that shared intention, the only way that that could have occurred is as follows. The contents of the text messages contained in the superseded Facts showed that one of the motivations shared by Mr Patrick and the applicant was to protect the illegal business of Mr Argus. And yet the correct Facts simply spoke of the forceful eviction of the victim by way of her being “kicked out” of her own home.

10. [41]

    Whilst it is true that the correct Facts referred to Mr Patrick yelling, immediately before the commission of the offence, that the victim could not “go around… ruining witness A’s business”, and that statement was surely made in the presence of the applicant, we nevertheless proceed on the hypothesis that it is reasonably possible, on the basis of the correct Facts, that the applicant did not share in that motivation for the eviction.

11. [42]

    Accordingly, although we think there is force in the submission of the Crown on this application that the misapprehension did not materially affect the outcome, the better course is to reconsider, albeit briefly, each of the rejected grounds. That reconsideration must take place on the basis that there was no evidence that the motivation on the part of the applicant for the eviction was to protect the drug dealing business of Mr Argus.

12. [43]

    As for ground 1 recounted above, we nevertheless remain of the view that the findings of the sentencing judge that the offence possessed “some degree of planning” and was “certainly not a spontaneous or opportunistic offence” were well open. The extracts from the correct Facts that we have provided above provide a firm foundation for those findings. Indeed, the first sentence of [7] of the correct Facts speaks explicitly of the two offenders having “planned” to “kick out” the victim from her own home. The latter expression surely connotes the potential use of force. And acceptance of the proposition that the precise kind and degree of violence actually inflicted by way of the reckless wounding in company may not have been explicitly planned between the offenders does not mean that the finding of the sentencing judge is mistaken.

13. [44]

    As for ground 2, which speaks of the parity principle but in truth focused upon the finding of the sentencing judge that the offenders possessed equal criminal and moral culpability, we remain of the view that that finding was not erroneous, even proceeding as we do on the basis that there was no shared desire to stop the victim interfering in an illegal business. To summarise and adopt again the rejection of the arguments of counsel for the applicant in the judgment of Button J at [85] to [90] without reference to a shared desire to protect the unlawful business, neither the fact that the applicant was an accessory nor any other factor compels a differentiation between the two offenders, whether “legally” or “morally”.

14. [45]

    As for ground 3, reconsidering the assessment of the sentencing judge that the offence was in the mid-range of seriousness, and doing so in the absence of any suggestion that the applicant was motivated by a desire to protect an illegal business, even so we are of the view that evaluation was well open at first instance.

15. [46]

    Finally, as for ground 5, even proceeding on the assumption that the offence committed by the applicant was not motivated by a desire to protect drug dealing, for the other reasons given by Button J at [100] to [105], we do not accept the proposition that the sentence imposed upon the applicant for this offence of significant violence was so severe as to be manifestly excessive.

Conclusion

1. [47]

   In short: a factual error occurred in the judgment of Button J. It cannot be sheeted home to either party. We proceed for abundant caution on the assumption that it could have materially affected the determination of the four rejected grounds. We have reconsidered those grounds with the practical effect of the error excised. The grounds remain rejected.

Orders

1. [48]

   We therefore make the following orders:

   1. (1)

      Leave to apply to set aside or vary the judgment given on 15 April 2020 is granted.

   2. (2)

      The application is dismissed.