Green v R

1. [1]

   MACFARLAN JA: I agree with Hamill J.

2. [2]

   HARRISON J: I agree with Hamill J.

3. [3]

   HAMILL J: Bradley Green seeks leave to appeal against the sentence imposed on him by Judge Haesler SC on 25 May 2021. The sentence was imposed following the applicant’s plea of guilty to an offence against s 86(3) of the Crimes Act 1900 (NSW), namely detaining a person with intent to obtain financial advantage and causing actual bodily harm in the course of the detention.

4. [4]

   The applicant was sentenced to imprisonment for 6 years and 7 months with a non-parole period of 3 years and 4 months.

5. [5]

   The applicant raised a single ground of appeal asserting that the proceedings miscarried because his lawyers failed to act in a timely manner on his instructions to enter a plea of guilty. The result was that he received a statutory sentencing discount of 5%, rather than the 10% he would have received if the plea was entered one day earlier than when the District Court Judge was advised he would plead guilty.

6. [6]

   The applicant called evidence on the appeal from the two lawyers involved in his case when it was before the District Court. Each filed an affidavit and was cross-examined by counsel for the respondent. The applicant also tendered, “on the usual basis”, [1] evidence of his progress in custody and the particularly onerous conditions of incarceration he has endured since the sentence was imposed. He submitted the Court should exercise the sentencing discretion afresh and impose a lesser sentence.

7. [7]

   The respondent contended that the evidence did not establish a miscarriage for three reasons. First, the applicant bore the onus of establishing a miscarriage and the evidence failed to do this. Secondly, the evidence established that the belated entry of the plea resulted from the applicant seeking to negotiate more favourable agreed facts. Thirdly, whatever be the cause of the late entry of the plea, the legislative regime currently in existence removes any discretion in the sentencing Court, either at first instance or on appeal. Accordingly, even if this Court found that the timing of the plea was not the applicant’s fault, it has no discretion in resentencing to apply a more generous and appropriate discount. Therefore, the respondent submits the appeal should be dismissed.

8. [8]

   I am satisfied that the sentencing proceedings miscarried. Counsel for the applicant constructed an ingenious argument, based on s 25D(2)(b)(ii) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), in support of the proposition that this Court could now apply a 10% discount to the starting point proposed by the sentencing Judge. While I am unable to accept that argument, I am persuaded that the Court should exercise the sentencing discretion afresh based on the established miscarriage and the evidence tendered on the usual basis.

9. [9]

   I would grant leave to appeal and allow the appeal. I would quash the sentence imposed in the District Court and impose a sentence of 5 years and 8 months with a non-parole period of 3 years. These are my reasons for favouring those orders.

Facts relevant to sentence

1. [10]

   Mr Green was 24 years old at the time of the offence. He and three co-offenders, two of whom were juvenile offenders a little younger than 18, were involved in a joint criminal enterprise pursuant to which the victim was detained, assaulted and subjected to humiliating mistreatment. The motivation for this conduct was to recover money from the victim for rent owed to one of the co-offenders and suspicion on the part of the offender that the victim stole his wallet some time earlier.

2. [11]

   The agreed facts were recounted by the sentencing Judge as follows:

3. [12]

   The agreed facts were more extensive, but his Honour’s summary was not disputed on the appeal and suffices for present purposes. The facts established that the victim was in the company of two of the co-offenders from around 12:30am and the detention commenced a short time later when the applicant and the other co-offender arrived at the premises. He escaped at about 3:30pm.

4. [13]

   The applicant was on bail at the time of the offence, an aggravating circumstance which Judge Haesler took into account. His Honour also considered the length of the detention, the severity of the assaults, the “continuing humiliation of the victim” and that there was “a degree of vigilantism” in the offending. [3] These considerations led his Honour to conclude that it was a serious example of an offence under s 86(3) which “requires a significant custodial sentence.” [4] His Honour held the prolonged period of the offending indicated a “profound disrespect” for others. [5]

5. [14]

   A victim impact statement referred to the impact on the victim, including scarring from the wound, his loss of trust in people, and his fears and insecurities. The victim said the offence “affected me massively, personally and as a person.” [6]

6. [15]

   The applicant was remorseful, although the sentencing Judge said he expressed his remorse “belatedly”. [7] The applicant gave evidence that he found it difficult to watch the video of himself assaulting the victim and said, “the person doing that is not the person I am today.” [8] The sentencing Judge took into account the applicant’s “growing maturity, his change in attitude and acknowledgment of the wrongs of his actions.” [9] His Honour was impressed with the applicant’s efforts at rehabilitation during the 8 months he spent in custody following his arrest, his time at a residential program at Odyssey House and another day program in community prior to sentence. The likelihood that he would commit further offences was tied to his ability to be remain drug-free. [10]

7. [16]

   Two sentence assessment reports and a psychological report were tendered on sentence. The applicant gave evidence confirming the history provided to the authors of those reports. [11] Judge Haesler acknowledged the applicant’s history of disadvantage and that it included estrangement from those closest to him and a “family unit blighted by the drug methylamphetamine.” [12] The impact of the applicant’s addiction to methylamphetamine since he was a child, and its impact on his behaviour and capacity to make sound decisions, were given appropriate weight in the sentencing exercise. The sentencing Judge found the background of deprivation attracted the Bugmy principles [13] and his moral culpability for the offence was reduced as a result. [14] His Honour held that the applicant had “done everything he [could] do during his period of remand to demonstrate a progress to rehabilitation.” [15]

8. [17]

   The applicant was given credit for 3 months, representing about half the time he spent in quasi-custody in Odyssey House. Along with the initial 8 months on remand before he was released to bail, this resulted in a back-date of 11 months and the sentence was ordered to commence on 25 April 2020. [16]

9. [18]

   His Honour found special circumstances and made a substantial adjustment to the non-parole period so that it represented around 50.6% of the total sentence. [17]

10. [19]

    Judge Haesler acknowledged the tragedy involved in sentencing the applicant, in light of his efforts at rehabilitation and his evidence on sentence which his Honour found to be “[heartening].” [18] However, the facts were so serious that a substantial sentence of imprisonment was required.

The co-offenders

1. [20]

   Judge Haesler had sentenced each of the co-offenders and there was no “disparity” ground arising from the sentences imposed on the others. There were differences in their roles and involvement in the offence and two of the offenders, one of whom committed the most serious act of violence when the applicant was not present, were not yet adults. The sentences imposed on the other offenders were:

2. [21]

   No ground of appeal is directed to Judge Haesler’s approach to “parity” – or, more correctly, the proportionality between the sentences. However, the applicant suggested that the evidence may justify a closer comparison if the Court came to resentence. [19]

The legislative scheme

1. [22]

   Before analysing the ground of appeal and the competing arguments it is necessary to set out the relevant statutory provisions. These are contained within Div 1A Pt 3 of the CSPA (emphasis in original):

2. [23]

   The power of a Magistrate to “accept” a plea, and the nature and content of the jurisdiction then being exercised, is yet to be the subject of conclusive judicial consideration, although Simpson AJA discussed the issue in Black v R [2022] NSWCCA 17 at [43]-[50]. See also the observations of Rothman J in R v Tailford (No 2) [2021] NSWSC 695 at [142], [144] in relation to which Simpson AJA expressed some misgivings in Black v R at [46].

3. [24]

   It is unnecessary to set out the provisions in ss 25A, 25B, 25D(4)-(6), 25E or, subject to one matter, s 25F.

4. [25]

   Section 25F(4) is relevant to one of the applicant’s submissions:

5. [26]

   The plea of guilty in the present case was entered 10 days before the trial date. Sections 25D(2)(b) and (c) meant the applicant was entitled to a discount of 5%. He was not entitled to a discount of 10%. The solicitor for the applicant conceded this in the sentencing hearing. Judge Haesler was not informed the applicant had provided instructions to plead guilty many weeks earlier and that the ODPP was so advised. As will be demonstrated, those facts were not relevant to the level of the discount because of the prescriptive nature of the provisions.

Evidence on the appeal

1. [27]

   In support of his single ground of appeal, the applicant read two affidavits affirmed by the lawyers who represented him in the District Court. The first was from Elizabeth Parkes dated 1 April 2022 and the second was from Paul Paine dated 22 August 2022. The Court received the evidence on a provisional basis and counsel for the respondent cross-examined each deponent briefly on the hearing of the application. Ms Parkes was the trial advocate and Mr Paine was her instructing solicitor. Both lawyers are employed by the Legal Aid Commission and had carriage of the applicant’s case.

2. [28]

   The following undisputed chronology emerges from the evidence:

3. [29]

   Four things should be observed about this chronology and the evidence upon which it is based:

4. [30]

   I turn to consider the more significant aspects of the evidence given on the hearing of the appeal.

5. [31]

   Ms Parkes gave short additional evidence in chief, including:

6. [32]

   Ms Parkes was cross examined on paragraph [11] of her affidavit, which read “I am aware that on 29 October 2020, Mr Paine had a conference with Mr Green at Odyssey House, whereby Mr Green signed written instructions to plead guilty. I understand the instructions to plead guilty were not contingent on the facts being agreed”:

7. [33]

   In cross-examination, Mr Paine was taken to Annexure B of his Affidavit, and a file note which included, “we will now contact DPP to try and resolve factual dispute and we will notify client in time of feedback from DPP”. He gave the following answers regarding that note:

8. [34]

   Mr Paine was then taken to the written instructions to plead guilty, and asked about the fourth bullet point which said:

9. [35]

   He gave the following evidence about that part of the document:

10. [36]

    Mr Paine was cross-examined further on this issue:

11. [37]

    There was no suggestion either of the lawyers did other than provide honest and reliable evidence. No evidence was adduced of the caseloads of Ms Parkes or Mr Paine but it can safely be assumed, as Legal Aid lawyers at a busy court like Wollongong, each was operating under a burden of relentless workloads and time pressures.

12. [38]

    The question is not whether there was neglect or incompetence but whether, viewed objectively, the events that unfolded gave rise to a miscarriage of justice. [30] The inquiry is an objective one, focused “ultimately, [on] what did or did not occur” in relation to the entering of the plea and whether a miscarriage resulted. [31] The evidence of the lawyers is relevant to inform that question of whether there was a miscarriage of justice. It is not an inquiry into whether there was professional neglect. As Gaudron J put it in TKWJ v The Queen (2002) 212 CLR 124 at [31]:

13. [39]

    Her Honour was alluding to earlier cases where such language was employed and where the focus of the inquiry was on the degree of the lawyers’ neglect or incompetence. [32] Similarly McHugh J said in TKWJ v The Queen at [79]:

14. [40]

    One relevant question is whether there is a “reasonable explanation” for the course taken by the lawyers that may mean that there was no miscarriage. [33] As Beech-Jones CJ at CL said in AK v R [2022] NSWCCA 175, “if there could be such an explanation, then no error or defect in the trial occasioning any miscarriage of justice will have occurred.” [34] The language used by Gaudron J in TKWJ v The Queen was somewhat more flexible (at [28]):

15. [41]

    The applicant argued that in circumstances where the instructions to plead guilty were provided around 1½ months before the trial date and formalised with signed instructions 19 days before the trial date, the failure to arrange for timely entry of the plea caused the proceedings to miscarry in the sense that Mr Green lost the benefit of the sentencing discount to which he ought to have been entitled.

16. [42]

    The respondent submitted that there was a reasonable explanation for the delay because the applicant’s lawyers delayed entry of the plea to “gain a negotiating advantage as to facts” on sentence. [35] The respondent relied on the evidence of Mr Paine in cross-examination [36] to demonstrate that his conduct was at least partly motivated by s 25F(4) of the CSPA which provides that the sentencing discount “may” be reduced if “the utilitarian value of the plea of guilty has been eroded by a dispute as to the facts that was not determined in favour of the offender”. The respondent submitted there was no relevant unfairness or miscarriage because a deliberate tactical decision was made not to enter the plea while negotiations as to the facts continued: cf. in a different context, R v Diab [2005] NSWCCA 64 at [19], citing R v Abou-Chabake [2004] NSWCCA 356 and Ratten v The Queen (1974) 131 CLR 510 at 517; [1974] HCA 35.

17. [43]

    Counsel for the applicant responded to that argument in his oral submissions:

18. [44]

    I have concluded that the failure to arrange for the entry of the plea on or before 16 November 2020 constituted a material irregularity in the process. My reasons can be summarised as follows:

    1. (1)

       I accept Ms Parkes’ evidence that the instructions to plead guilty taken on 24 September 2020 were not contingent on agreement as to the facts to be tendered on sentence.

    2. (2)

       Ms Parkes notified the ODPP that day that the case would not proceed to trial and any factual dispute did not involve the elements of the offence to which the applicant pleaded guilty.

    3. (3)

       There is no satisfactory explanation for the delay in notifying the Court that the case would resolve by way of a guilty plea. That would surely have been done at the pre-trial mention on 6 October 2020 if the applicant was represented.

    4. (4)

       Both the file note of 24 September 2020 and the written instructions of 29 October 2020 refer to the applicant obtaining a 10% sentencing discount.

    5. (5)

       Neither of those documents suggest that the applicant was advised the 10% discount may be jeopardised if there was an unsuccessful attempt to challenge the facts, or that he gave instructions he would not plead guilty unless or until the facts were settled.

    6. (6)

       Relatedly, and accepting Mr Paine’s evidence that he was (as the lawyer with carriage of the matter) conscious of s 25F(4), there is nothing to suggest the impact of that provision was explained to the applicant.

    7. (7)

       The residual factual disputes were of a relatively minor nature, and it is far from certain that Mr Green would have lost any part of the discount had the matter been litigated. It is the type of situation contemplated by Gaudron J at [28] in TKWJ v The Queen; the “forensic advantage [was] slight” when compared with the loss of the sentencing discount.

    8. (8)

       The fact that the applicant was not represented at the pre-trial mention on 6 October 2020, and the failure of the parties to advise the presiding Judge the applicant had provided instructions to enter a guilty plea, suggests the case had somehow fallen between the cracks.

    9. (9)

       The precise timing of notifying the District Court of the plea, that is one day after the last day upon which the applicant would obtain the 10% sentencing discount, also suggests an unintended failure to meet a deadline, rather than a forensic strategy.

    10. (10)

        I am unable to accept the respondent’s submission that the instructions to plead guilty were always contingent upon the settling of facts suitable to the applicant. [38] Ms Parkes’ evidence is directly to the contrary, the contemporaneous records suggest the opposite, and there is no evidence that the applicant was made aware of the possible impact of s 25F(4).

19. [45]

    Accepting there was an irregularity, a further issue upon which the parties disagreed was whether the irregularity in this case gave rise to any “practical injustice” or was one capable of affecting the result: cf AK v R at [5] (Beech-Jones CJ at CL). The question arose because of the rigid nature of the sentencing regime created by Div 1A of the CSPA. The respondent submitted that, even if it is accepted that the proceedings miscarried because the plea ought to have been entered earlier, no different discount could be awarded because the relevant provision only allows for the 10% discount where the plea is actually entered (or formal notice is provided). Because the sentence is not otherwise subject to challenge, it was submitted that there was no occasion to revisit the question of sentencing afresh. Reliance was placed on AK v R and various cases where this Court has held that a discrete mathematical error could be corrected without sentencing afresh in the sense described in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

20. [46]

    Counsel for the applicant attempted to rely on the judgments of Brereton JA and Bellew J in Ke v R [2021] NSWCCA 177. In that case, the applicant made an offer to plead guilty to a different offence (a new count offence) in the course of a case conference in the Local Court. Contrary to the provisions of Div 1A, the offer was not recorded in the “negotiations document” or “case conference certificate”. [39] Accordingly, under s 25E(3), the applicant was denied a 25% discount because, while the offer to plead guilty to the different offence was made and rejected, it was not “recorded in a negotiations document”. [40] Brereton JA held at [63] the provision “should be construed as capturing an offer which was recorded, or ought to have been recorded, in a negotiations document” (emphasis in original). Similarly, Bellew J held at [338] that the result “could not possibly have been the Parliament’s intention, in enacting s 25E”. At [339], his Honour said s 25E(2) should be construed as meaning “an offer which was recorded or which was required to be recorded in a negotiations document” (emphasis in original). His Honour gave his reasons for that conclusion in the paragraphs that followed (that is, [340]-[343]).

21. [47]

    Counsel for the applicant invited the Court to hold that a similar approach could be taken to s 25C(2) which describes that an offender “complies with the pre-trial notice requirements” if they “serve a notice on the prosecutor at least 14 days before the trial” (emphasis in original). It was suggested, by analogy to the judgments in Ke v R, that this provision should be read to include a situation where such a notice ought to have been or was required to be served. While the ingenuity of this submission is appreciated, it cannot be accepted. Unlike the case conferencing provisions, the legislation does not provide for, or imply, that there is any obligation or requirement to record or notify a plea offer; the sentencing discount turns on the actual timing of the plea or the actual compliance with the pre-trial notice requirements.

22. [48]

    The result is that the applicant, both at first instance and on appeal, is only entitled to the legislative discount provided for in s 25D(2)(c); that is a reduction of 5%.

23. [49]

    I turn to consider the respondent’s submission that the result is that there is no “practical injustice” and the Court should not exercise the sentencing discretion afresh in accordance with the High Court’s judgment in Kentwell v The Queen. The merit of this submission turns to a degree on an understanding of cases such as Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255.

24. [50]

    In Lehn v R, it was held that the Court should focus on the nature of the error or irregularity to determine whether it vitiated the entire sentencing discretion or only a discrete component of the sentence, which could be corrected or adjusted. A five-judge bench was convened to consider how an erroneously applied plea discount, which arose from a denial of procedural fairness at first instance, should be remedied.

25. [51]

    Following Kentwell v The Queen, the Court in Lehn v R held that where the sentencing discretion miscarried in respect of a discrete component of the sentencing process, just as where it has miscarried more generally, it is the duty of the Court to sentence afresh. [41] The Court approached its task by reference to s 6(3) of the Criminal Appeal Act 1912 (NSW):

26. [52]

    However, the Court agreed that Kentwell v The Queen at [42] authorised the correction of certain errors without sentencing afresh. Bathurst CJ in Lehn v R gave some examples at [72]:

27. [53]

    In Ke v R, Brereton JA explained the alternatives at [70]:

28. [54]

    More recently, Beech-Jones CJ at CL observed in Christian v R [2021] NSWCCA 300 at [35]:

29. [55]

    In the circumstances of the present case, it is impossible to approach the case on the basis of giving effect to the “judge’s clear intention when imposing the sentence”. [43] This is because the irregularity involved the sentencing Judge not knowing the applicant had provided instructions to plead guilty, and that the ODPP was on notice of that fact, many weeks before the Court was told of the development. It may involve an irregularity that can only be addressed by this Court making its own assessment of how to address the miscarriage and ensure the offender is sentenced according to law. [44]

30. [56]

    Since the decision in Kentwell v The Queen, there are a number of authorities which discuss errors which vitiate the sentencing discretion generally and require resentencing and those which may be remedied by a mathematical or temporal adjustment: see, for example, Zeiser v R [2020] NSWCCA 154, Ke v R and Black v R. While these cases assist on a general level, none deal with the question in issue in this appeal. The respondent acknowledged in its written submissions that this Court has not been called upon to determine a sentence appeal in circumstances where an applicant’s legal representatives failed to act in a timely manner to act on instructions to enter a plea of guilty. [45]

31. [57]

    This case is to be distinguished from cases where the mathematical error has been corrected without re-exercising the sentencing discretion. In this case, the error or miscarriage or irregularity is of a different nature and a mathematical or temporal adjustment is not an available remedy. I am also not satisfied the discount can neatly be separated from other sentencing purposes (to adopt some of the language employed in Lehn). While Judge Haesler would still have been bound by the legislative provisions to apply a 5% discount, his Honour may have given greater weight to particular aspects of punishment (such as rehabilitation) or considered the applicant’s earlier willingness to facilitate the course of justice and may have taken a different approach to the structure of the sentence. This accords with the approach taken by Bellew J in the case of Ke v R and is not contrary to the alternate approach favoured by Brereton JA in that same case at [70]-[73]. Brereton JA considered the mere adjustment approach “open, but not mandatory”. [46] The situation is different to that dealt with by the Court in Black v R where Simpson AJA said at [53] that the sentencing discount is “entirely discrete”. In that case, the Court held that the sentencing Judge erred in his construction of the provision and was able to rectify the error by applying the discount that ought to have been applied at first instance.

32. [58]

    In the applicant’s case, the sentencing discretion should be exercised afresh. In undertaking that exercise, the applicant’s affidavit read on the usual basis is of considerable significance.

33. [59]

    The applicant’s affidavit established that the applicant has been particularly impacted by measures implemented to control outbreaks of Covid-19. While that was to some extent predictable, and may have been considered by Judge Haesler, his Honour did not refer to the matter in his sentencing judgment. The applicant’s experience has been particularly onerous. He has been subject to frequent lockdowns and periods of quarantine as he was moved between prisons. The conditions during these lockdowns include confinement to his cell for 24 hours a day, apart from 15 minutes once every 2 days to take a shower (and in some cases not even that). During these periods, he has had no visits or other contact with family members. [47] By his own estimation and record keeping, the periods of isolation add up to at least 2 months, and likely more, of his time in custody.

34. [60]

    The affidavit also establishes the applicant’s progress toward rehabilitation since sentence. The applicant has been in stable employment throughout his time in custody and found work which he finds enjoyable. He is enthusiastic about the experience he has gained in his current construction role, which he hopes to use in a building apprenticeship on his release from custody. [48]

35. [61]

    The affidavit also outlines his other achievements in gaol. He has obtained a “Dogman” certificate (permitting him to direct crane operators on construction sites) and completed certificates in “Work Safely at Heights” and “Crane Course” through TAFE NSW. He was due to commence asbestos removal and white card courses in late August 2022. He is unable to engage in addiction programmes until 6 months prior to his release but expresses an eagerness to engage in them. [49]

Resentencing

1. [62]

   I have generally approached the resentencing process on the basis of the unchallenged findings of Judge Haesler. The new material satisfies me that there should be a closer proportion between his sentence and that imposed on the two male co-offenders. In applying the principles of parity and proportionality with the male co-offenders, I bear in mind that they were sentenced as juveniles and subject to a more benign sentencing regime. On the other hand, their actions during the period of offending were more serious and the most significant injury to the victim was inflicted in the applicant’s absence. His Honour made more favourable findings concerning the applicant’s remorse. [50]

2. [63]

   I have kept the maximum penalty (25 years) steadily in mind as well as the humiliating and brutal treatment of the victim. I accept Judge Haesler’s description of the offence but also his Honour’s favourable findings as to the applicant’s remorse, insight, and prospects of rehabilitation. I also take into account the breach of conditional liberty. I agree the sentence should be backdated by 11 months taking into account the time actually spent in custody on remand and giving some credit for the period of quasi-custody while at the Odyssey House rehabilitation program. The sentence will commence on 25 April 2020.

3. [64]

   I would commence with a starting point for the head sentence of 6 years. Allowing the statutory sentencing discount of 5% for the plea of guilty (a reduction of 3.6 months) and rounding (to 4 months) in the applicant’s favour, I would impose a sentence of imprisonment of 5 years and 8 months.

4. [65]

   Like Judge Haesler I find there are special circumstances pursuant to s 44(2) of the CSPA, based on the applicant’s youth, his efforts towards drug rehabilitation and his need for an extended period of supervision to continue those efforts on his release back into the community. By then he will have served a lengthy period of incarceration in onerous conditions. While the adjustment to the non-parole period is substantial, I have kept in mind that the minimum period of imprisonment must remain proportionate to the gravity of the offending. The adjustment I propose is similar, although not mathematically precisely the same, as that settled on by Judge Haesler. I propose a non-parole period of 3 years.

5. [66]

   The sentence would be 5 years and 8 months with a non-parole period of 3 years.

Orders

1. [67]

   I would make the following orders:

   1. (1)

      Grant leave to appeal against the sentence.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed by the District Court on 25 May 2021 and in lieu thereof the applicant is sentenced to a non-parole period of 3 years commencing on 25 April 2020 and expiring on 24 April 2023 with a balance of term of 2 years and 8 months expiring on 24 December 2025.

   4. (4)

      The applicant will first become eligible for release to parole at the expiration of the non-parole period.