Samandi v R

1. [1]

   BELL P: I agree with the reasons and orders proposed by Johnson J.

2. [2]

   JOHNSON J: The Applicant, Ali Samandi, seeks leave to appeal against conviction and sentence passed at the Sydney District Court on 13 December 2018 for offences of assault occasioning actual bodily harm under s.59(1) Crimes Act 1900 (six counts), assault under s.61 Crimes Act 1900 (three counts), intentionally damaging property contrary to s.195(1)(a) Crimes Act 1900 (one count) and making a false accusation knowing that persons are innocent of an alleged offence contrary to s.314 Crimes Act 1900 (one count).

3. [3]

   Following pleas of guilty to these charges, the Applicant was sentenced by his Honour Judge Norrish QC on 13 December 2018 to an aggregate sentence of imprisonment for six years comprising a non-parole period of three years and nine months commencing on 23 February 2017 and expiring on 22 November 2020, with a balance of term of two years and three months commencing on 23 November 2020 and expiring on 22 February 2023.

4. [4]

   As will be seen, the charges to which the Applicant pleaded guilty included acts of domestic violence by the Applicant directed to his partner in a period between 2015 and 2017 when the Applicant was aged 31 or 32 years and his partner, FF, was 28 or 29 years of age. In accordance with usual practice in domestic violence cases, the complainant will not be identified in this judgment.

5. [5]

   In accordance with s.53A Crimes (Sentencing Procedure) Act 1999, his Honour stated the following indicative sentences for each offence:

6. [6]

   Contained on a certificate under s.166 Criminal Procedure Act 1986 was an offence of (between 16 and 19 June 2017) knowingly contravening a prohibition or restriction specified in an apprehended domestic violence order (“ADVO”) contrary to s.14(1) Crimes (Domestic and Personal Violence) Act 2007 for which the maximum penalty was imprisonment for two years or 50 penalty units or both. For this offence, the Applicant was sentenced to a term of imprisonment for five months commencing on 18 October 2018 and expiring on 17 March 2019.

Grounds of Appeal

1. [7]

   The Applicant appeared for himself at the hearing of the appeal. He prepared and filed a range of documents in advance of the hearing in this Court.

2. [8]

   On 20 December 2018, the Applicant filed a Notice of Intention to Appeal against conviction and sentence with this Notice being extended on a number of occasions to expire on 30 April 2020.

3. [9]

   On 16 March 2020, the Applicant filed his Notice of Appeal, grounds of appeal and written submissions.

4. [10]

   The Applicant’s grounds of appeal with respect to conviction are in the following terms:

5. [11]

   What is described as Conviction Ground 3 is not a separate ground of appeal, but a submission made as to what the Applicant contends is the appropriate outcome if the conviction appeal is allowed.

6. [12]

   As the grounds relied upon by the Applicant do not involve a question of law alone, he requires leave to appeal against conviction: s.5(1)(b) Criminal Appeal Act 1912.

7. [13]

   The Applicant seeks leave to appeal, as well, with respect to sentence and has furnished various documents on that issue.

8. [14]

   The Crown paraphrased the Applicant’s sentence grounds in a manner which appears to state accurately the matters he seeks to raise:

9. [15]

   As will be seen, there is an overlap between the Conviction and Sentence Grounds, which complain in various respects concerning the Applicant’s legal representation in the District Court.

10. [16]

    On 9 June 2020, the Court of Criminal Appeal, differently constituted, granted the Applicant bail pending the hearing and determination of his appeal: Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102. It is clear that the principal factor which favoured the grant of bail was the proximity of the expiration of the Applicant’s non-parole period (22 November 2020) to the hearing date in this Court (14 August 2020).

11. [17]

    The Applicant was released on 9 June 2020 pursuant to the grant of conditional bail.

Hearing of the Appeal in this Court

1. [18]

   As noted earlier, at the hearing on 14 August 2020, the Applicant appeared without legal representation. He has been unrepresented throughout the appeal process and had taken steps himself to prepare for the hearing both before and after bail was granted to him on 9 June 2020.

2. [19]

   The Applicant had filed in the Court, and served upon the Crown, a wide range of documentation including affidavits, submissions and other material which were not assembled in an orderly way at the time of filing and service. In these circumstances, the Crown took steps to prepare a volume containing documents which appeared to be relied upon by the Applicant. An affidavit of Sophie Rose Freeman affirmed 30 July 2020 explained the steps which had been taken by the Crown to present this material in what was sought to be an orderly fashion. Ms Freeman is a legal clerk in the employ of the Director of Public Prosecutions (NSW). At the hearing, the Court received this volume entitled “Appeal Book 2” which was utilised for the purpose of the hearing.

3. [20]

   In addition, in accordance with usual practice, an appeal book was prepared and provided to the Court which contained the sentencing remarks of his Honour Judge Norrish QC and transcripts and exhibits from the proceedings before the District Court.

4. [21]

   The Crown objected to parts of the material contained in Appeal Book 2 on a number of bases, including relevance and form. The Court admitted the contents of Appeal Book 2, subject to determination of any necessary objection to relevance. As the Applicant stated that he proposed to give evidence, the Crown made clear that a number of objections to material were not pressed.

5. [22]

   Given the issues which fall for determination in the appeal, it is not necessary for the Court to rule upon any particular objection taken by the Crown to relevance of material contained in Appeal Book 2.

6. [23]

   The Applicant appeared physically in person at the hearing in accordance with his bail undertaking. The Crown appeared remotely by audio-visual link in accordance with usual practice during the COVID-19 pandemic.

7. [24]

   The Applicant was cross-examined by the Crown upon issues relating to his application to go behind his pleas of guilty entered in the District Court and his criticism of his former legal representatives for not obtaining medical material relevant to sentence.

8. [25]

   Having regard to the foreshadowed grounds of appeal and some of the material provided by the Applicant in support of his case, the Applicant had waived client legal privilege and the Crown obtained the following affidavits from his former legal representatives:

9. [26]

   A range of documents were annexed to the affidavits of these deponents including signed instructions provided by the Applicant.

10. [27]

    Each witness gave evidence by audio-visual link and was cross-examined by the Applicant.

11. [28]

    The Applicant, who impressed as an intelligent and resourceful person, demonstrated at the hearing before this Court a command of the material and an understanding of the issues which fell to be determined by this Court.

Principles to be Applied on Application for Leave to Appeal Against Conviction Following a Plea of Guilty

1. [29]

   At the outset, it is appropriate to set out the principles to be applied by this Court where a convicted person seeks to appeal against conviction having pleaded guilty with respect to the offences in the District Court.

2. [30]

   In Kanakaradnam v R [2018] NSWCCA 282, with the concurrence of Simpson AJA and N Adams J, I said at [17]-[18]:

3. [31]

   The judgment of Howie J in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129 has been applied regularly by this Court in decisions where application is made to go behind a plea of guilty entered at first instance: Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [33], [35]; Khamis v R [2014] NSWCCA 152 at [57]-[59]; Kennedy v R [2017] NSWCCA 193 at [45]; Kanakaradnam v R at [19]. Howie J said in Wong v Director of Public Prosecutions (NSW) at [33]-[39]:

4. [32]

   In Hunter Quarries Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326, the Court (at [54]-[55]) noted the following further principles where application is made to withdraw a plea of guilty:

Principles to be Applied on Sentence Appeal Based Upon Alleged Incompetent Legal Representation in the Sentencing Court

1. [33]

   It is appropriate to set out, as well, the principles to be applied where a sentence appeal is based upon a claim of incompetent legal representation before the sentencing court. In Tsiakas v R [2015] NSWCCA 187, Beech-Jones J (Leeming JA and myself agreeing) said at [42]-[45]:

Chronology of Proceedings in the District Court

1. [34]

   What follows constitutes a chronological account of events concerning the Applicant’s proceedings in the District Court. In the main, there is limited dispute as to what happened with areas of controversy relating more to why particular things were done or not done.

2. [35]

   The chronological account in this part of the judgment is largely uncontroversial. I will make findings concerning the credibility and reliability of accounts given in controversial areas when determining the conviction and sentence appeals later in this judgment.

3. [36]

   The Applicant was arrested and charged on 23 February 2017 and remained in custody thereafter bail refused.

4. [37]

   On 8 November 2017, the Applicant was committed for trial from the Burwood Local Court to the District Court with respect to the charges referred to at [5] above, together with four counts of having sexual intercourse without consent contrary to s.61I Crimes Act 1900 (which were Counts 9, 11, 12 and 14 on the first indictment). All of the charges (apart from the s.314 Crimes Act 1900 charge) related to the same complainant, FF.

5. [38]

   The matters were listed for trial at the Sydney District Court commencing 8 October 2018, but the trial was not reached and was stood in the List pending the availability of a trial Judge.

6. [39]

   On 11 October 2018, the matter was adjourned until Friday, 12 October 2018.

7. [40]

   On 12 October 2018, the Applicant’s trial came before his Honour Judge Norrish QC who was engaged in another unrelated trial so that this trial was adjourned until Monday, 15 October 2018.

8. [41]

   On 15 October 2018, the matter was adjourned to 16 October 2018. On 16 October 2018, on the application of the Applicant, Count 5 on the indictment (the s.314 Crimes Act 1900 charge) was severed from the indictment: R v Samandi [2018] NSWDC 397.

9. [42]

   Following the ruling on 16 October 2018, the Applicant gave instructions to Mr Brasch, his counsel, and Mr Abbas, his solicitor, to seek to negotiate a plea arrangement with the Crown. The Applicant provided the following written instructions dated 16 October 2018 (affidavit of Mr Abbas, Annexure B):

10. [43]

    The Applicant admitted in evidence in this Court that his signature appeared after the fourth paragraph of the written instructions and that he wrote the fifth paragraph and then signed and dated the document.

11. [44]

    The offer was made to the Crown by the Applicant’s lawyers in accordance with his instructions.

12. [45]

    The Crown responded on 17 October 2018, rejecting the proposal that any offences be taken into account on a Form 1 under s.32 Crimes (Sentencing Procedure) Act 1999.

13. [46]

    On 17 October 2018, the Applicant was arraigned and pleaded not guilty to each of the 14 counts on the first indictment. A jury was empanelled and his trial commenced with the Crown Prosecutor embarking upon his opening address. At the conclusion of the day, the trial was adjourned to continue on 18 October 2018.

14. [47]

    The Crown indicated a preparedness to accept a plea arrangement where the Applicant pleaded guilty to all counts (including the offence on the s.166 certificate) and with the Crown not proceeding further on the four counts of having sexual intercourse without consent contrary to s.61I Crimes Act 1900, each of which was punishable by a maximum penalty of imprisonment for 14 years with a standard non-parole period of seven years. The Crown did not agree with any offence being dealt with on a Form 1.

15. [48]

    At the commencement of proceedings on 18 October 2018, the trial Judge was informed in the absence of the jury that there had “been some developments” with counsel seeking a little time to take steps to “resolve the matter” (T101, 18 October 2018).

16. [49]

    His Honour Judge Norrish QC took steps to ensure that the Applicant was aware of what was happening (T102-3):

17. [50]

    After informing the jury there would be a delay, his Honour said in the absence of the jury (T105):

18. [51]

    On 18 October 2018, the Applicant signed and dated a document headed “Instructions” which stated (affidavit of Mr Abbas, Annexure C):

19. [52]

    As well as signing and dating those instructions, the Applicant signed each page of the “Agreed Facts on Sentence” (affidavit of Mr Abbas, Annexure C).

20. [53]

    After the short adjournment, the parties returned to the Court and his Honour enquired as to the position, again in the absence of the jury (T105):

21. [54]

    Discussion ensued as to what was to happen, after which his Honour spoke to the Applicant to ensure that he understood the position (T109):

22. [55]

    After further discussion, his Honour explained to the Applicant what was to happen next (T112):

23. [56]

    In compliance with s.157 Criminal Procedure Act 1986, the Applicant was then arraigned in the absence of the jury upon two indictments containing a total of 11 counts in relation to which he entered a plea of guilty to each of the matters referred to at [5] above (T112-115, 18 October 2018).

24. [57]

    The jury was then brought into Court and, in accordance with s.157(1) Criminal Procedure Act 1986, was discharged from giving a verdict (T116-117). In the course of his explanation to the jury as to what had happened, his Honour stated that he had accepted the pleas of guilty (T116.31-38).

25. [58]

    A number of documents were tendered on sentence including Agreed Facts (Exhibit 1) and the Applicant’s criminal history (Exhibit 2). As noted earlier (at [52]), the Applicant had signed a copy of the Agreed Facts (affidavit of Mr Abbas, Annexure C).

26. [59]

    The proceedings were adjourned for a sentencing hearing on 7 December 2018 (T117-119).

27. [60]

    On 7 December 2018, Mr Jiang of counsel appeared for the Applicant in place of Mr Brasch. The Applicant had requested his solicitors to brief new counsel.

28. [61]

    At the commencement of the proceedings on 7 December 2018, Mr Jiang asked for time to confer with the Applicant and his Honour stood the matter down for that purpose (T3, 7 December 2018).

29. [62]

    During the conference on 7 December 2018, Mr Jiang and Mr Jamal, the instructing solicitor, state that they discussed with the Applicant whether he wished to proceed with the sentencing hearing given the absence of certain medical material referred to in the psychologist’s report of Ms Ann-Marie De Santa Brigida dated 5 December 2018. Ms De Santa Brigida had assessed the Applicant on 18 November 2018 for the purpose of preparing a report for the sentencing hearing. According to Mr Jiang and Mr Jamal, the Applicant wished to proceed that day (affidavit of Mr Jiang, Annexure E). The Applicant signed a document containing the facts concerning the s.166 certificate offence.

30. [63]

    When the proceedings resumed in Court, the Applicant pleaded guilty to the offence on the certificate under s.166 (T5-6, 7 December 2018):

31. [64]

    The sentencing hearing proceeded with the Crown tendering further documents including a victim impact statement from FF dated 29 November 2018.

32. [65]

    The Applicant did not give evidence at the sentencing hearing. A number of documents were tendered in the Applicant’s case on sentence including a handwritten letter of apology from the Applicant dated 6 August 2018 and the report of Ms De Santa Brigida dated 5 December 2018. Also tendered in the defence case was a typed letter from the Applicant’s mother dated 7 December 2018 to which further reference will be made later in this judgment (Exhibit 4).

33. [66]

    Written submissions were furnished on sentence by the Crown and Mr Jiang (Exhibits 5 and 6). Oral submissions were made on sentence at the end of which the matter was adjourned to 13 December 2018 for sentence.

34. [67]

    On 11 December 2018, Mr Jiang and Mr Jamal had a telephone conference with the Applicant in which each of the lawyers state that the Applicant was advised to seek an adjournment on 13 December 2018 to allow further material to be sought concerning sentence. Mr Jiang and Mr Jamal each state that the Applicant rejected this advice and gave instructions that he wished to proceed with sentence to be passed on 13 December 2018. I will return to this issue later in the judgment.

The Sentencing Remarks of His Honour Judge Norrish QC on 13 December 2018

1. [68]

   At this point, it is appropriate to mention findings made by his Honour Judge Norrish QC in his sentencing remarks following the Applicant’s pleas of guilty to the charges identified earlier in this judgment. This will assist an understanding of the facts of the offences, for the purpose of the sentence appeal, as well as allowing readers to observe the Applicant’s interactions with the sentencing Judge as the delivery of the sentencing remarks proceeded, an aspect which relates to the conviction appeal.

2. [69]

   His Honour commenced the sentencing remarks in the following way (ROS1):

3. [70]

   After identifying the charges to which the Applicant pleaded guilty, his Honour said with respect to the Applicant’s pleas of guilty (ROS2-3):

4. [71]

   His Honour then recited the facts of the offences utilising the Agreed Facts which had been signed by the Applicant. His Honour commenced with Counts 1 to 3 (ROS3-5):

5. [72]

   The sentencing Judge then outlined the facts of Count 4 and the related offence under s.314 Crimes Act 1900 which occurred on 4 May 2016 (ROS5-8):

6. [73]

   His Honour continued the factual narrative, including the marriage of the Applicant to FF, reciting the facts of the s.59(1) offence which is Count 5 (ROS8-9):

7. [74]

   His Honour turned to the further s.59(1) offence in Count 6 (ROS9-11):

8. [75]

   At this point in the sentencing remarks, the Applicant interrupted. The transcript of the sentencing remarks continued as follows (ROS11):

9. [76]

   His Honour turned to the s.61 offence in Count 7 (ROS11-12):

10. [77]

    The sentencing Judge recited the facts of Count 8 (ROS12):

11. [78]

    His Honour turned to the s.59(1) offence in Count 10 and the s.195(1)(a) offence in Count 13 (ROS12-14):

12. [79]

    The sentencing Judge then referred to the complainant’s contact with a women’s refuge and police on 23 February 2017 (ROS14):

13. [80]

    His Honour recounted the arrest of the Applicant on 23 February 2017 and the delivery of the letter in June 2017 which constituted the contravene ADVO offence on the s.166 certificate (ROS15):

14. [81]

    His Honour then referred to the Applicant’s criminal history noting that it “does not entitle him to any leniency” (ROS15). His Honour said in this respect (ROS15-16):

15. [82]

    The sentencing Judge then referred to a letter of apology dated 6 December 2018, which was written by the Applicant and tendered in the defence case on sentence. The Applicant said in evidence before this Court that the letter had been “dictated” to him by his lawyers. This was denied by Mr Jiang and Mr Jamal who stated that the Applicant was informed that a letter to the Court expressing regret may assist him on sentence, but that the letter had not been dictated by either of them. I will return to this topic later in the judgment. His Honour said concerning the letter (ROS16-17):

16. [83]

    The sentencing Judge then referred to a reference from the Applicant’s mother which touched upon aspects of his early life (ROS17-18). It should be noted that the Applicant’s mother stated in the letter that she had visited him in custody and that “Ali has apologised continually for his actions and has promised to address his actions and seek help”.

17. [84]

    His Honour then turned to the report of the psychologist, Ms De Santa Brigida, who stated that the Applicant said he had been assaulted in 2007. His Honour said (ROS18):

18. [85]

    Significantly, his Honour then said (ROS18-19):

19. [86]

    The sentencing Judge referred to the fact that the Applicant had not given evidence at the sentencing hearing and the significance of this to the approach to be taken to the psychological report (ROS19-20):

20. [87]

    The sentencing Judge then outlined what the psychologist reported the Applicant had told her on a number of issues (ROS20-21).

21. [88]

    His Honour then noted the diagnosis of the psychologist of post-traumatic stress disorder and said (ROS21-23):

22. [89]

    It appears that the Applicant had interrupted again at this point and his Honour continued (ROS23):

23. [90]

    His Honour then made the following finding concerning the psychological evidence (ROS23-24):

24. [91]

    His Honour made the following further finding concerning the course of conduct constituting the Applicant’s offences of violence against the victim (ROS25):

25. [92]

    The sentencing Judge referred to written submissions which had been made by the Crown and counsel for the Applicant and had regard to a range of issues including totality (ROS25-26).

26. [93]

    His Honour made the following finding concerning the offence under s.314 Crimes Act 1900 (ROS26-27):

27. [94]

    The sentencing Judge referred to factors to be considered under s.21A Crimes (Sentencing Procedure) Act 1999 (ROS27-28).

28. [95]

    His Honour referred to a submission which had been made on behalf of the Applicant and noted, in this context, the Applicant’s letter of apology to the victim (ROS28):

29. [96]

    His Honour referred to sentencing principles concerning domestic violence offences (ROS28-29):

30. [97]

    It is apparent that the Applicant had been speaking at times during the delivery of his Honour’s sentencing remarks. Immediately after the passage contained in the preceding paragraph, his Honour said (ROS29-31):

31. [98]

    As his Honour drew closer to the end of the sentencing remarks, the Applicant became more vocal. The sentencing remarks continued (ROS31-32):

32. [99]

    His Honour then recited the indicative sentences listed earlier in this judgment (at [5]). His Honour concluded the sentencing remarks as follows (ROS32):

Determination of Conviction Appeal

1. [100]

   Conviction Grounds 1 and 2 are overlapping and complain about the Applicant’s entry of pleas of guilty. He seeks leave to withdraw his pleas of guilty so that he may proceed to trial at a later time (Conviction Ground 3).

2. [101]

   The principles to be applied on a conviction appeal where the convicted person seeks to withdraw his pleas of guilty were outlined earlier in this judgment (at [30]-[32]).

3. [102]

   I have had regard to the oral and documentary evidence adduced in this Court.

4. [103]

   The onus lies upon the Applicant to establish a good and substantial reason for the Court granting him leave to withdraw his pleas of guilty. As noted in R v Thalari at [33] (see [30] above), an application to withdraw a plea of guilty is to be approached with caution bordering on circumspection. The present application is a good example of the reason why the Court should approach such an application cautiously.

5. [104]

   It was the Applicant who gave signed instructions to Mr Abbas on 16 October 2018 to explore a plea bargain with the Crown, with the Applicant’s instructions at that time being to offer to plead guilty to the offences on the indictment apart from the counts alleging sexual intercourse without consent and with the common assault charges to be placed on a Form 1 (see [42] above).

6. [105]

   Mr Brasch and Mr Abbas acted on those instructions and negotiated with the Crown, but the Applicant’s offer was not acceptable to the Crown. On 18 October 2018, the Applicant provided further written instructions to his legal representatives to plead guilty to the counts on the indictment referred to earlier in this judgment (see [51] above).

7. [106]

   When giving written instructions to Mr Brasch and Mr Abbas to plead guilty on 18 October 2018, the Applicant also signed a copy of the “Agreed Facts on Sentence” (affidavit of Mr Abbas, Annexure C).

8. [107]

   Apart from advice given by his lawyers, his Honour Judge Norrish QC took careful steps at several points along the way on 18 October 2018 to ensure that the Applicant understood what was happening (see [49], [50], [54] and [55] above). The Applicant then pleaded guilty to the charges in the absence of the jury in accordance with the procedure in s.157 Criminal Procedure Act 1986. The trial Judge thereafter discharged the jury and, in accordance with s.157, noted that the Court accepted the Applicant’s pleas of guilty (T116-117).

9. [108]

   The proceedings were adjourned to 7 December 2018 for a sentencing hearing. Tendered by Mr Jiang, counsel for the Applicant on that day, was the Applicant’s handwritten letter apologising to the victim and the Court which bore the date 6 December 2018 (affidavit of Mr Jiang, Annexure C). In that letter, the Applicant indicated that he wished to “demonstrate my remorse in regards to my actions”. Later in the letter, the Applicant said, “I hereby want to wholeheartedly extend my deepest sorrow to you and [the victim] for all the wrong and inappropriate actions I took and I want to illustrate my remorse by two words ‘I’m sorry’”.

10. [109]

    As noted earlier (at [63]), the Applicant pleaded guilty to a charge on a certificate under s.166 Criminal Procedure Act 1986 of contravening in June 2017 an ADVO intended to protect FF. The contravention involved the Applicant sending letters written in Farsi to the victim from a correctional centre in which, amongst other statements, he expressed his regret for what he had done to her.

11. [110]

    Also tendered in the defence case on sentence was a letter from the Applicant’s mother which stated that he had expressed his regret to her for his conduct towards the victim (see [83] above). In addition, Ms De Santa Brigida stated in her report that the Applicant “expressed his remorse for the offences”.

12. [111]

    When the sentencing Judge was passing sentence on 13 December 2018, the Applicant made a number of outbursts which included denial of some offences and a claim that he wished to reverse his pleas. This appears to be the foundation for the Applicant’s Conviction Ground 2 which asserts that his Honour erred in not allowing him to withdraw his pleas of guilty.

13. [112]

    This ground of appeal is misconceived. The Applicant had pleaded guilty to these charges after a jury had been empanelled for his trial so that s.157 Criminal Procedure Act 1986 applied. The effect of the mechanism in s.157 was to give rise to a “deemed jury verdict”, as described by Spigelman CJ in R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61 at [12]. It was not open to his Honour to consider an application for leave to withdraw the pleas of guilty in these circumstances: R v Hura at [13]; R v Kaewklom (No. 2) [2012] NSWSC 1117 at [26]-[32]. To the extent that Conviction Ground 2 refers to the “administration of allocutus”, it is sufficient to observe that, where the trial has commenced before a jury, the common law concept of “allocutus” is now covered by the statutory procedure contained in s.157 where, as occurred here, the presiding Judge accepted the Applicant’s pleas of guilty (see [57] above).

14. [113]

    Insofar as the Applicant complains (in support of Conviction Ground 1) about aspects of his legal representation at the trial and sentencing hearing, those complaints should be rejected. Where there is any inconsistency between the accounts of the Applicant and those of Mr Brasch, Mr Jiang, Mr Abbas and Mr Jamal, I accept the accounts of the Applicant’s former counsel and solicitors, noting that their accounts are supported in significant respects by written instructions signed by the Applicant and by contemporaneous file notes.

15. [114]

    I do not accept the Applicant’s evidence that he was given a type of assurance by Mr Abbas that he would receive a sentence (or non-parole period) that expired at or soon after the date when sentence was to be passed. I accept that the Applicant was advised (correctly) that his sentence would be much shorter than it would have been if he proceeded to trial and was convicted of the s.61I Crimes Act 1900 offences as well. That risk was removed by the Applicant’s desire to plead guilty to the remaining counts.

16. [115]

    I accept that the Applicant hoped that he might not get an additional custodial component on sentence, but this was not the product of any assurance made to him by any of his then lawyers. The Applicant’s claim in this respect is contrary to written instructions provided by him on 18 October 2018 (see [51] above).

17. [116]

    Nor do I accept that the Applicant’s letter of remorse was “dictated” to him by his lawyers. I accept that Mr Jiang and Mr Jamal raised the possibility of a letter of remorse with the Applicant in their telephone conference with him. However, it was the Applicant, an intelligent and resourceful man, who wrote the letter, whilst in custody, using his own words and knowing that his letter was to be provided to the Court for the purpose of sentence.

18. [117]

    The Applicant’s complaint concerning the failure of his lawyers to obtain material concerning the assault upon him in 2007 does not assist him on the conviction appeal. I will return to this issue when considering the sentence appeal. Put shortly, however, the evidence reveals that the psychologist, Ms De Santa Brigida, suggested that efforts be taken to obtain information concerning a 2007 incident in which the Applicant was injured. The affidavits of Mr Jiang, Mr Jamal and Mr Abbas indicate that action was taken in this respect. It was discovered that Dr George Lord (who had seen the Applicant) had died. The Applicant was advised on 11 December 2018 of the potential advantages of seeking a further adjournment of the sentencing hearing from 13 December 2018 to allow a subpoena to issue seeking any report or records of Dr Lord. Mr Jamal went as far as drafting a Notice of Motion and affidavit in support for the purpose of making an adjournment application. The Applicant was advised of the advantages and disadvantages of such a course. He gave instructions to Mr Jiang and Mr Jamal that no adjournment should be sought on 13 December 2018 and that the Court should proceed to sentence him, which is what in fact occurred.

19. [118]

    I record these aspects here to note that they do not bear upon the conviction appeal. Further, it appears that the Applicant’s legal representatives took appropriate steps and advised him at that time, but it was the Applicant who determined that an adjournment should not be sought.

20. [119]

    Insofar as a number of complaints of different types are made by the Applicant concerning his former counsel and solicitors, I do not consider that it is necessary to address these matters which have no material bearing upon his application for leave to appeal against conviction.

21. [120]

    The Applicant had full knowledge of the elements of the offences to which he pleaded guilty and the facts upon which those charges were based. He had read the Statement of Agreed Facts and had signed that document. He had demonstrated a close and astute interest in the various charges and well understood then what they meant and the seriousness of the charges to which he was pleading guilty.

22. [121]

    Even if it was the case that the Applicant pleaded guilty to these matters upon grounds which extended beyond his belief in his guilt (and I do not so find), this provides no assistance to him on this application. As is clear from the authorities, the acceptable reasons why a person may plead guilty to offences extend beyond the person’s belief in his guilt, and include the hope of obtaining a more lenient sentence than would be the case if convicted after trial and the advantage for the Applicant of the Crown not proceeding with more serious charges.

23. [122]

    Those features manifested themselves in this case. The Applicant’s guilty pleas saw the withdrawal of the four serious charges of having sexual intercourse without consent for which a very substantial sentence of imprisonment would have followed if the Applicant was convicted after trial. His plea agreement saw the removal of that risk. In addition, the Applicant secured a 10% discount for his pleas of guilty.

24. [123]

    The Applicant’s pleas of guilty were entered freely and voluntarily, and were the subject of written instructions from the Applicant to his lawyers. There was no intimidation, improper inducement or fraud which led to the Applicant’s pleas of guilty. This was an informed decision by the Applicant to plead guilty to the charges for which sentence was passed.

25. [124]

    To the extent that expediency formed part of the Applicant’s decision to enter the pleas of guilty, this was clearly a decision taken by him in what he perceived to be his own interests by removing the risk of being found guilty of the s.61I charges and to advance his hope of obtaining a more lenient sentence.

26. [125]

    It must be said, in any event, that there was a significant body of evidence against the Applicant apart from the evidence of FF, including the Applicant’s expressions of remorse made to his mother and the psychologist and in his correspondence to the victim in June 2017 which gave rise to the contravene ADVO offence as well as his letter of apology dated 6 December 2018.

27. [126]

    In my view, the Applicant has fallen far short of discharging the onus on him of demonstrating a good and substantial reason for the Court granting him leave to withdraw his pleas of guilty. He has not established that a miscarriage of justice will result from him being held to the pleas of guilty which he entered to the charges for which sentence was passed.

28. [127]

    Conviction Grounds 1 and 2 should be rejected.

29. [128]

    I would refuse the Applicant leave to appeal against conviction.

Determination of Sentence Appeal

1. [129]

   Insofar as the Applicant’s appeal against sentence is based upon a claim of incompetent legal representation before the District Court, it is necessary for him to establish the elements of such a ground as stated by Beech-Jones J in Tsiakas v R at [42]-[45] (see [33] above).

2. [130]

   The Applicant had given clear written instructions to his lawyers on 18 October 2018 to plead guilty to the offences in relation to which sentence was passed. I have determined that the Applicant should not be granted leave to appeal against conviction as he has fallen far short of discharging the onus on him to allow his pleas of guilty to be withdrawn. He pleaded guilty knowing the elements of the offences and the facts relied upon to constitute the offences.

3. [131]

   The Applicant complains concerning steps taken (or not taken) by his legal representatives with respect to sentence. I have noted earlier (at [117]-[118]) that the evidence discloses that Mr Jiang, Mr Jamal and Mr Abbas sought to take steps on his behalf and, in particular, to advise him to seek an adjournment to see if records of Dr Lord could be obtained on subpoena in circumstances where it had been discovered that Dr Lord was deceased.

4. [132]

   Mr Jamal made a file note concerning the telephone conference on 11 December 2018 with Mr Jiang and the Applicant (affidavit of Mr Jiang, Annexure J). I accept the evidence of Mr Jiang and Mr Jamal that the file note is an accurate reflection of advice given to the Applicant. The issue was whether an adjournment should be sought to allow a subpoena to issue seeking any records of Dr George Lord (then deceased), who had examined the Applicant in 2008. The report of Ms De Santa Brigida had raised the desirability of this step and Mr Jiang and Mr Jamal were acting prudently in raising the issue for instructions from the Applicant. The conference notes record what were described as potential “risks” and “rewards” from an adjournment. The “risks” included uncertainty as to what was in any document (if there were any documents), delay and uncertainty as to whether the sentencing Judge would allow an adjournment. The “rewards” included the possibility of evidence of brain damage with the prospect of that being a significant factor on sentence.

5. [133]

   According to the file note, the Applicant asked if he would get bail during the adjournment and was advised that was unlikely. The file note stated that the Applicant gave clear instructions that he did not want to delay sentence.

6. [134]

   I accept the evidence of Mr Jiang and Mr Jamal concerning the conference on 11 December 2018. Sensible advice was given to the Applicant and he was asked to give instructions as to the way forward. In the event that the Applicant gave instructions to seek an adjournment, Mr Jamal had prepared a draft Notice of Motion and supporting affidavit for that purpose. As it happened, the Applicant made clear that he wished the matter to proceed and no adjournment application was made.

7. [135]

   In my view, reasonable steps were taken by the Applicant’s legal representatives to advise him of the available courses of action, but it was the Applicant who determined that an adjournment would not be sought on 13 December 2018 so that there would be no opportunity for further steps to be taken to seek additional material prior to sentence

8. [136]

   The evidence does not demonstrate incompetence on the part of the Applicant’s legal representatives concerning sentence. The Applicant has not established a basis for this Court to intervene by reference to the principles in Tsiakas v R.

9. [137]

   It is the case that a number of documents have been obtained by the Applicant since sentence was passed on 13 December 2018. These documents are:

10. [138]

    The report of Dr Lord of 24 July 2008 is the latest and most important document concerning treatment and investigation of the Applicant for a head injury sustained in an assault on 11 January 2007. Dr Lord referred to EEG and MRI scans which had been undertaken. A progress MRI scan was performed on 10 July 2008 and this MRI was compared to the earlier study. Dr Lord stated that “This test was considered to be within normal limits”. Dr Lord stated that the Applicant “has sustained a frontal head injury confirmed by the history and the scar just below the left eyebrow”. Dr Lord completed his report in the following way (emphasis added):

11. [139]

    Accordingly, the state of the evidence in July 2008 was that the Applicant had sustained a head injury in an assault in January 2007, but there was no evidence of a brain injury with the prognosis being that the Applicant should “return to normal function”.

12. [140]

    The 2007 and 2008 notes and reports concerning the Applicant’s condition arising from an incident in January 2007 were in existence at the time the Applicant was sentenced on 13 December 2018. The Applicant’s legal representatives raised with him the option of an adjournment to seek records from Dr Lord which, if an adjournment was granted, would likely have seen production of Dr Lord’s report of 24 July 2008.

13. [141]

    This Court allows, in certain circumstances, medical evidence not tendered at the sentencing hearing to be made available to this Court on appeal where the interests of justice so dictate. The principles to be applied are expressed in cases such as Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [111]-[121] and Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [77]-[86]. Beech-Jones J referred to this scenario as well in Tsiakas v R at [45] (see [33] above). If a miscarriage of justice resulted from the unavailability of the medical material, then this Court may receive the material and determine the appeal against sentence in light of all material.

14. [142]

    Although I would admit the 2007 and 2008 material for the purpose of the Court considering this aspect of the appeal, I am not persuaded that a miscarriage of justice resulted from its absence in the sentencing proceedings in December 2018.

15. [143]

    It is appropriate to have regard to the material now available, in particular Dr Lord’s report of 24 July 2008, in conjunction with that which was before the sentencing Judge in the form of the report from Ms De Santa Brigida.

16. [144]

    The material before the sentencing Judge indicated that, after 2008 and before 2016, the Applicant had carried on various businesses, including international travel for business purposes and had been successful in that respect. Whatever problems existed at the time of Dr Lord’s report in July 2008 do not appear to have manifested themselves in such a way as to interfere with the Applicant’s capacity to live a productive and functional working life.

17. [145]

    The offences committed against the victim occurred in a 14-month period between December 2015 and February 2017. There is no contemporaneous medical evidence concerning the Applicant in that period. The report of Ms De Santa Brigida was based upon a two-hour interview she had with the Applicant in custody on 18 November 2018 and the Applicant’s own history provided to the psychologist. The letter from the Applicant’s mother took the matter no further.

18. [146]

    Significantly, for present purposes, there is no recent report from a medical practitioner or a psychologist which is sought to be put before this Court and which seeks to relate the 2007 and 2008 reports (and, in particular, Dr Lord’s report of 24 July 2008) to the commission of these offences between 2015 and 2017 or to the Applicant’s present condition.

19. [147]

    The offences occurred more than seven years after Dr Lord’s report. It is true that the availability of these reports would have indicated to the sentencing Judge that there was contemporaneous documentation concerning an injury sustained by the Applicant in an assault in January 2007. However, there is no clear or viable basis for linking that incident to the Applicant’s protracted period of offending when he committed domestic violence offences against the victim.

20. [148]

    As observed earlier (at [85]), the sentencing Judge had noted when sentencing the Applicant “It is possible he was assaulted but there is no evidence to establish any organic condition arising out of any such assault that might have contributed to the prisoner’s conduct”. This remains the position now that this Court has available to it Dr Lord’s report and the other material referred to earlier (at [137]).

21. [149]

    I observe that the Applicant has been at liberty on bail since 9 June 2020. Whatever restrictions may have applied to him before then in gathering evidence for the purpose of this appeal, he has had an opportunity to take all appropriate steps in preparation for the hearing of the appeal whilst being at large in the community. The Applicant has filed a steady volume of material in support of his appeal in the weeks before the hearing. However, there is no recent medical report upon which he seeks to rely which attempts to link what was said in Dr Lord’s report to the present offending. Further, having had an opportunity to observe the Applicant during the hearing in this Court, he displayed resourcefulness and a command of the material and the issues and a capacity to function effectively which did not seem consistent with the presence of brain injury.

22. [150]

    In my view, the Applicant has not demonstrated that a miscarriage of justice resulted from the absence of the 2007 and 2008 reports at the time of sentence. These documents would have assisted in establishing that such an assault took place, but that would have been the limit of their forensic use. There was no further material arising in the seven-year period between 2008 and 2015, during which the Applicant appeared to function effectively before the commencement of the course of criminal conduct directed to the victim over a period of some 14 months.

23. [151]

    For completeness, I reject the Applicant’s submission in support of Sentence Ground 2 (at [14] above) that the sentencing Judge was prejudiced because he had seen the facts alleged as part of the charges under s.61I Crimes Act 1900. This is a common feature in the life of a judicial officer presiding in criminal cases and his Honour disregarded those matters in accordance with his duty as a judicial officer: Attorney General for NSW v John Fairfax and Sons Limited and Bacon (1985) 6 NSWLR 695 at 709 (McHugh JA).

24. [152]

    I would reject Sentence Grounds 1, 2 and 3.

25. [153]

    The Applicant contends (in Sentence Ground 4) that the aggregate sentence imposed in his case was manifestly excessive. To succeed on this ground, the Applicant must demonstrate that the sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

26. [154]

    With respect to the claim by the Applicant that the aggregate sentence was manifestly excessive, it is important to note what has been said by this Court concerning domestic violence offences. The written submissions for the Crown in the District Court referred to the authorities in this respect, which his Honour acknowledged and applied when passing sentence.

27. [155]

    In Cherry v R [2017] NSWCCA 150, this Court said at [78]-[79]:

28. [156]

    The Applicant’s offences reflected his exercise of control and domination over the victim with these being common features of domestic violence offences: Cherry v R at [76]-[77]. Specific and general deterrence were important factors on sentence in this case together with the requirement for powerful denunciation by the community of such conduct and recognition of the harm done to the victim as a result of these offences: R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at [86]; Cherry v R at [76].

29. [157]

    It is important to keep in mind, as well, the serious public justice offence committed by the Applicant contrary to s.314 Crimes Act 1900. Section 314 lies within Division 2 of Part 7 of the Crimes Act 1900 which contains offences concerning “interference with the administration of justice”. As the sentencing Judge found (see [72] and [93] above), the Applicant’s s.314 offence involved the making of false allegations against police officers designed to protect the Applicant himself from prosecution for domestic violence offences against his partner. The Applicant caused injuries to himself which he falsely attributed to police. As his Honour observed, the Applicant did not carry through with further reports. However, this was a serious public justice offence which warranted the indicative sentence of imprisonment for two years which was itself a significant component of the aggregate sentence imposed upon the Applicant.

30. [158]

    No error has been demonstrated on the part of the sentencing Judge in his approach to sentence. His Honour was especially guarded with respect to any claim of contrition or remorse, with the Applicant’s outbursts during the sentencing remarks not assisting the Applicant in that respect. It must be said that the Applicant’s approach in this Court, in attempting to withdraw his pleas of guilty, would further complicate his position concerning sentence if the Court moved to resentence him. There is a continuing and deep-seated lack of insight on the part of the Applicant concerning his domestic violence offences.

31. [159]

    The aggregate sentence imposed upon the Applicant was open in all the circumstances of the case. The aggregate sentence was not manifestly excessive.

32. [160]

    I would grant the Applicant leave to appeal against sentence because of the issue concerning the subsequent availability and provision of the 2007 and 2008 reports. However, the Applicant has not succeeded in demonstrating that this Court should intervene on the issue of sentence.

33. [161]

    I would reject each of the Applicant’s grounds of appeal concerning sentence.

Conclusion and Orders

1. [162]

   The Applicant was released on bail by this Court on 9 June 2020 and has remained at large until the date when judgment is to be given on the appeal.

2. [163]

   The time during which the Applicant is at liberty on bail, pending the determination of his appeal, does not count as part of his term of imprisonment under the aggregate sentence imposed on 13 December 2018: s.18(2) Criminal Appeal Act 1912. The Court may make any order that it thinks fit to give effect to s.18, including an order specifying the date of recommencement of the Applicant’s sentence: s.28A(2) Criminal Appeal Act 1912.

3. [164]

   As part of the orders which I propose, the Court should nominate a date for the recommencement of the Applicant’s sentence. At the conclusion of the hearing on 14 August 2020, the Applicant was informed that he was required under his bail undertaking to attend before the Court when judgment was given on his appeal. The following proposed orders assume the attendance of the Applicant today.

4. [165]

   I propose the following orders:

5. [166]

   ROTHMAN J: I agree with the reasons for judgment of Johnson J and the orders he proposes. I wish to add comment.

6. [167]

   As his Honour points out, there are many reasons an accused may plead guilty. In this case, a process of “charge bargaining” occurred, by which the prosecutor agreed to withdraw the charges relating to sexual assault in return for a plea of guilty on the other charges.

7. [168]

   It is for the prosecutor alone to determine the charges to prefer or continue; for the accused alone to determine the plea to enter; and for the judge alone to determine the sentence to impose. [1]

8. [169]

   In pleading guilty, the applicant ensured that the sexual assault charges would not be pursued and he would never be sentenced for such offences. In so doing the applicant, whether or not he considered he was guilty of the sexual assaults, had removed any risk of a finding of guilt. If he were to have been found guilty of such charges, the sentence imposed on him would have been significantly more severe than the one from which he now appeals.

9. [170]

   Because of the extraordinary criminal experience and knowledge of the sentencing judge, his Honour ensured that the applicant well understood precisely what was happening and on what he was embarking.

10. [171]

    The applicant was impressive as a witness and an advocate, but that impressiveness disclosed his full understanding of the documents and of English. The applicant may, in the circumstances of the stress under which he was then operating, have misunderstood aspects of what he was being advised and may not recall all that he was being told. But he read the documents. The signature on the documents is his and he agreed to the plea and gained the benefit of the bargain. The Crown case on the sexual assault charges was not weak.

11. [172]

    If the plea of guilty were allowed to be withdrawn, the sexual assault charges would then be able to be pursued. However, for the reasons given by Johnson J, the application to withdraw the plea of guilty cannot be granted.