Saunders v R

1. [1]

   BEECH-JONES CJ at CL: In written submissions before the sentencing judge both parties addressed the relevance of the applicant’s criminal record to the sentencing process. The Crown submitted that the applicant’s criminal record was not such that he “ought to be denied any leniency”. The sentencing judge found that his criminal record disentitled him “to the leniency that would otherwise be available to a person of good character”. Her Honour also found that he had “good prospects of rehabilitation, having regard to … his limited criminal history” and accepted that “he is otherwise of good character”. Hence the sentencing judge did not deny the applicant “any leniency”. Instead, her Honour simply did not afford the full leniency that would otherwise be available to a person of good character. In these circumstances the complaint that the applicant was denied procedural fairness is untenable. I otherwise agree with the reasons of Price J. I agree with the orders his Honour proposes.

2. [2]

   PRICE J: The sole ground of appeal upon which the applicant seeks leave to appeal his sentence is:

3. [3]

   The applicant had been arraigned in the District Court on an indictment that contained seven counts to which he had entered pleas of not guilty. On the first day of the trial (1 February 2021), the applicant pleaded guilty to four offences:

4. [4]

   When sentencing for count 1, Bright DCJ (‘the Judge’) was asked to take into account two further offences on a Form 1, being:

   1. (1)

      On 4 May 2017, intentionally choking Ms Foote and was reckless as to rendering her unconscious contrary to s 37(1) of the Crimes Act (count 2); and

   2. (2)

      On 7 November 2017, intimidate with intent to cause fear of physical or mental harm (the victim being Mr Fernance) contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act.

5. [5]

   On 12 May 2021, after allowing a 5% discount for the late guilty pleas and finding special circumstances, the Judge imposed the following sentences:

6. [6]

   For counts 1 and 4 (taking into account the Form 1 offences), the applicant was sentenced to an aggregate term of 3 years’ imprisonment to date from 11 May 2021 and to expire on 10 May 2024 with a non-parole period of 1 year and 6 months to expire on 10 November 2022.

7. [7]

   For counts 3 and 5, the applicant was sentenced to community corrections orders for a period of 12 months dating from 12 May 2021 and expiring on 11 May 2022.

Factual background

1. [8]

   The facts were agreed for the purposes of sentence. The following summary is largely taken from the Judge’s account of them.

2. [9]

   The applicant and Ms Foote were in a domestic relationship from 2004 to 2017. They lived together at Mandalong. The relationship broke down in early 2017. Ms Foote was residing at another property with her new partner, Mr Fernance.

3. [10]

   On 4 May 2017, Ms Foote attended the property at Mandalong to pick up her dog. The applicant rang Ms Foote to advise that he could no longer look after her dog and that he was going to leave it at the property in a truck to be picked up. The applicant told Ms Foote he would be in Newcastle.

4. [11]

   After Ms Foote had collected the dog, the applicant emerged from behind the truck and grabbed hold of her in a bear hug. He was behind her and had one arm across her chest and the other around her throat. The applicant squeezed Ms Foote’s throat until she passed out (count 1 and commencement of count 2, Form 1). Ms Foote came to shortly afterwards. She tried to get up and the applicant grabbed her from behind as she screamed. The applicant placed his fingers into Ms Foote’s mouth, who bit them. The applicant grabbed her neck again until she passed out. Ms Foote was able to wriggle free again after waking up (end of count 2).

5. [12]

   The applicant took hold of Ms Foote again and said that he was going to harm her, Mr Fernance, and then himself (count 3). Ms Foote kicked at the applicant, who struck her, causing bruising around her eye (count 4). The applicant was then sitting on the ground and Ms Foote was standing. When Ms Foote tried to leave, the applicant held onto her legs. She sat next to him in an effort to calm him down. The applicant began crying.

6. [13]

   Ms Foote eventually got into a car and locked the doors. After the applicant’s parents arrived and she told them what happened, she left the property. She rang the applicant to check whether he was going to be home and the applicant told her that he was sorry for what had happened. He said he “didn’t mean to snap” and apologised to her.

7. [14]

   After these events and before June, the applicant attended Mr Fernance’s workplace and asked to speak to him. The two men went to where the applicant’s vehicle was parked. The applicant pointed to a sledgehammer in the back of the vehicle, a scuffle ensued and the applicant said, “I came here to knock you out” (count 5).

8. [15]

   Around 10am on 7 November 2017, the applicant called Mr Fernance. A settlement dispute was continuing between the applicant and Ms Foote concerning their assets. The applicant threatened Mr Fernance, saying, “Game on, I’m going to get you” (count 6, Form 1).

The proceedings on sentence before the Judge

1. [16]

   During the proceedings on sentence before the Judge on 26 March 2021, the applicant’s counsel and the Crown tendered written submissions. Relevantly to the ground of appeal, the applicant submitted under the heading “Mitigating factors” the following:

2. [17]

   When making submissions regarding mitigating factors, the Crown’s written submissions included the following:

3. [18]

   The applicant’s prior criminal history which was tendered by the Crown disclosed the following offences:

4. [19]

   The Crown also tendered a victim impact statement and a sentencing assessment report. The applicant’s counsel tendered an affidavit sworn by the applicant, some character testimonials, and a health summary sheet which her Honour read. The applicant’s counsel then said:

5. [20]

   After the applicant confirmed that he wanted the two offences on the Form 1 to be taken into account on sentence for count 1, the following exchange took place between the applicant’s counsel and the Judge:

6. [21]

   Her Honour was then advised that the applicant was required for cross-examination by the Crown. During the applicant’s evidence, he was neither asked in his evidence-in-chief nor in cross-examination about his prior criminal history. At the conclusion of the applicant’s evidence, his counsel sought an adjournment so that he could have shoulder surgery which had been previously booked. In permitting the adjournment, the Judge said:

7. [22]

   The sentencing proceedings were adjourned until 7 May 2021.

8. [23]

   On the resumption of the sentencing proceedings, the applicant’s counsel tendered psychological and orthopaedic reports and her Honour heard submissions from both parties.

9. [24]

   At the commencement of the submissions, the applicant’s counsel said:

10. [25]

    Further on, the applicant’s counsel said:

11. [26]

    No reference was made by the applicant’s counsel to his prior criminal history nor was it raised by the Crown or the Judge. After hearing submissions and re-arraigning the applicant, her Honour asked:

12. [27]

    To which the parties replied:

Some findings by the Judge

1. [28]

   After recounting the facts of the offences, the Judge, in assessing the objective seriousness of count 1, took into account the degree of violence, the isolated area where the offending occurred, and that the offending was an episode of domestic violence. Her Honour regarded “the rendering of the complainant unconscious as a more serious example of this offence, disclosing a higher level of objective seriousness in circumstances where the offence is also made out if a person is rendered insensible or incapable of resistance”. Her Honour was also satisfied that the applicant had demonstrated recklessness of a very high order. Her Honour was not satisfied beyond reasonable doubt that there was some planning in relation to the offending.

2. [29]

   The Judge assessed the objective seriousness of count 1 as “being in the middle of the range”. [8]

3. [30]

   In assessing the objective seriousness of count 4 (assault occasioning actual bodily harm), the Judge took into account the degree of violence used; the bruising around the victim’s face being the actual bodily harm occasioned and the offending being an episode of domestic violence. Her Honour assessed the objective seriousness of count 4 as being “below the middle of the range”. [9]

4. [31]

   As to counts 3 and 5, her Honour assessed the objective seriousness of these offences as being “below the middle of the range”. [10]

5. [32]

   The Judge noted that the Crown relied on two aggravating factors, the first being that the victim was vulnerable because the offending occurred at a geographically isolated location. Her Honour said that she had taken that factor into account in assessing objective seriousness and did not propose to double count it. Her Honour was not satisfied that the second aggravating factor relied upon by the Crown, being that the offence involved planning, had been established beyond reasonable doubt.

6. [33]

   After reading out passages from Ms Foote’s victim impact statement, the Judge observed “that the offending has had a significant impact upon [Ms Foote’s] life, not only at the time the offending was committed but because of the ongoing emotional difficulties that impact on her day to day life”. [11]

7. [34]

   When considering the applicant’s subjective case, the Judge said:

8. [35]

   The Judge then addressed the applicant’s background, his previous relationships, the applicant’s expressions of remorse, his future plans, medical history and other evidence tendered on his behalf. Her Honour detailed at some length, the psychologist’s report and treatment recommendations.

9. [36]

   The Judge noted that the psychologist was of the opinion that no mental health treatment was warranted and there were no offence-related needs to be addressed. Her Honour said:

10. [37]

    The Judge then referred to the reliance by the Crown and the applicant’s counsel upon oral and written submissions. Her Honour said:

11. [38]

    The Judge found that the applicant was remorseful for his conduct. As to his prospects of rehabilitation, her Honour said:

12. [39]

    Her Honour was also satisfied that the applicant was unlikely to reoffend.

13. [40]

    The Judge accepted the applicant’s evidence of his health conditions being diabetes, heart disease, high blood pressure and recent surgery for a shoulder injury. Her Honour said that each of those matters had been taken into account in determining the appropriate sentences.

14. [41]

    Her Honour said that the s 37 offence on the Form 1 was objectively serious and warranted an increase in the sentence that would otherwise be imposed for count 1. However, as the s 13(1) offence on the Form 1 would not have resulted in a custodial sentence, her Honour did not propose to increase the sentence for that offence.

15. [42]

    The Judge had regard to the principle of totality and considered, for counts 1 and 4, no penalty other than imprisonment was appropriate. In imposing an aggregate sentence for these counts, her Honour indicated a sentence of 2 years and 10 months’ imprisonment after the 5% discount for count 1 taking into account the Form 1 matters, and 5 months’ imprisonment after the 5% discount for count 4. Her Honour was not satisfied that the custodial threshold had been crossed in relation to counts 3 and 5 and indicated her intention to impose community correction orders.

16. [43]

    Her Honour found special circumstances being the applicant’s first time in custody. Her Honour then imposed the sentences detailed at [6]-[7] above.

Ground of appeal: The sentencing judge denied the applicant procedural fairness in finding that his criminal history disentitled him to leniency

1. [44]

   The applicant submitted that both he and the Crown had relied upon written submissions, together with brief supplementary oral submissions. Submissions in relation to the applicant’s criminal history were limited to the written submissions of the parties. The applicant noted that the applicant’s criminal history was not ventilated in oral submissions at any point during the proceedings by the parties, or indeed by the Judge.

2. [45]

   The applicant referred to paragraph 14(a) in his written submissions, which is quoted at [16] above. The applicant pointed to paragraph 14 in the Crown submissions, quoted at [17] above, which the applicant contended demonstrated that the Crown agreed with his submission. As both the applicant and the Crown had submitted that leniency should be extended on account of his limited criminal history, the applicant argued that if her Honour was minded to make a finding contrary to that, the Court was obliged to give the parties an opportunity to call evidence, or to make further submissions, on that point to “open up” the proceedings as described in Mustafa v R (‘Mustafa’). [16] Her Honour’s failure to do so, the applicant argued, resulted in the applicant being denied the opportunity to present his case fairly such that the question of leniency could be properly ventilated.

3. [46]

   It was submitted that this denial of procedural fairness resulted in a practical injustice and not merely a theoretical injustice, as described by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam. [17]

4. [47]

   The applicant submitted that the issue of extending leniency was a significant and important part of the applicant’s case and the failure to give the applicant an opportunity to address this issue occasioned upon him a clear practical injustice.

5. [48]

   By way of contrast, the applicant referred to the submissions made to the Judge to consider an Intensive Correction Order as an alternative to full time imprisonment and pointed to her Honour’s statements quoted at [20] and [21] above. It was submitted that the nature and extent of the practical injustice was highlighted in those passages. The applicant pointed out that her Honour informed the parties that she had not yet formed a view as to full-time imprisonment and was awaiting submissions from them prior to determining this question.

6. [49]

   In oral submissions, Mr Burton, who appeared in this Court for the applicant, argued that her Honour’s remarks quoted at [34] above do not express that any leniency was being extended to the applicant. Whilst Mr Burton accepted that some leniency had been extended by the Judge to the applicant because of his limited criminal record, no leniency had been given to him as a separate consideration under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW). He argued that there was a lack of procedural fairness as both the Crown and the applicant had agreed that leniency should be extended, and the Judge was silent on this issue.

7. [50]

   The Crown submitted that the applicant’s counsel’s decision not to address the Judge orally on the applicant’s criminal history was explicable on the basis that the matter had been dealt with in written submissions, and his prior criminal history which involved matters of violence was not a strong feature of his subjective case. The Crown contended that it could not be reasonably argued that anything advantageous to the applicant could have been said on this topic if the Judge had specifically raised the issue during the proceedings on sentence.

8. [51]

   It was pointed out that the Crown’s written submissions before the Judge did not concede that the applicant was entitled to the full benefit of a finding of leniency on account of his criminal history. Furthermore, the burden of raising matters of mitigation rested on the applicant and it could not be assumed, irrespective of the Crown’s position, that a mitigatory finding would be made.

9. [52]

   The Crown submitted that the applicant was not precluded from making further submissions or calling evidence about the issue, nor was he deprived of a reasonable opportunity to prepare or present his case.

10. [53]

    Ms Wilkins SC, who appeared in this Court for the Crown, observed that the applicant’s ground of appeal did not challenge the Judge’s finding, but it was the process about which he complained. Ms Wilkins submitted that in any event, her Honour appears to have accepted the submissions made in writing about the applicant’s limited criminal history and made findings favourable to the applicant.

11. [54]

    Ms Wilkins contended that there was no practical unfairness that the applicant had suffered.

Consideration

1. [55]

   It is well known that an offender is entitled to procedural fairness during proceedings on sentence. [18] It is also clear “that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process…” [19] The ultimate question is whether there has been unfairness. As Garling J (with whom Macfarlan JA and Johnson J agreed) observed in Weir v Regina:

2. [56]

   The applicant’s complaint in the present case is not what the Judge did during the sentencing proceedings but what her Honour did not do. He complains that the procedural unfairness arises by being deprived of the opportunity to make further submissions on his limited criminal history where there was agreement with the Crown on this issue. He contends he had an expectation that the issue would be raised by the Judge if she was minded to depart from that joint submission. He places reliance on what was said by Rothman J in Mustafa at [90]:

3. [57]

   The applicant’s contention is that the issue was not “opened up” by the Judge. If it had been “opened up”, the applicant would have had the opportunity to address it and by her Honour’s failure to do so, the requirement for procedural fairness has not been satisfied. However, in paragraphs that preceded [90], Rothman J made the following observations:

4. [58]

   In Brown v R, Harrison J (with whom Hoeben CJ at CL and Beech-Jones J (as his Honour then was) agreed), when referring to concessions made by the Crown, said:

5. [59]

   The first obstacle to the applicant’s complaint of denial of procedural fairness arises from these statements of principle. District Court Criminal Practice Note 20 requires an outline of submissions to be filed prior to the sentence date. The requirement for written submissions provides an opportunity for the parties to “open up” any issue which is relevant to the sentence to be imposed. As a sentencing Judge is not bound by an agreement between the Crown and the offender on a matter involving judicial discretion, neither party can have a legitimate expectation of an automatic acceptance of the agreement by the sentencing Judge. In oral submissions, the parties have a further opportunity to present their respective cases. During this time, the parties should bring to the sentencing Judge’s attention the agreement between the parties so that the issue might be addressed. Where the agreement is confined to written submissions, the Judge’s silence on the issue does not mean that procedural fairness has been denied.

6. [60]

   In the present appeal, the issue raised in the applicant’s written submissions was whether “some” leniency could be extended to the applicant as it was contended on his behalf that he did not have a significant criminal record, which is a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act. The Crown did not refer to s 21A(3)(e) in written submissions, but stated that:

7. [61]

   It is evident that the parties were not in agreement as to the gap between the prior offences and the offences for which the applicant was being sentenced. The applicant’s submission referred to his “last offence [being] 14 years ago”, whereas the Crown stated that “[t]here is a 10 year gap between the offending before the court and the offences on the offender’s record”. It is surprising that this divergence was not raised by the parties before the Judge in oral submissions, but it was not.

8. [62]

   In any event, whether leniency should be extended under s 21A(3)(e) was a discretionary matter for the Judge and the applicant could not have had a legitimate expectation that the Judge would automatically accept the submissions that had been made. Putting aside for one moment the disagreement between the applicant and the Crown as to the length of time between the offences, the applicant’s prior record included offences involving violence and possession of an unregistered firearm. Although they may not have been offences of “domestic violence”, the applicant was being sentenced for serious offences involving violence and his prior history of violent offending could not be disregarded. There was ample opportunity for the applicant’s counsel to further open up the issue before the Judge in oral submissions, but counsel chose not to do so. The Judge neither expressly nor impliedly indicated that she would adopt the submission.

9. [63]

   In argument in this Court, the applicant placed reliance on the exchange between his counsel and the Judge which is quoted at [20]-[21] above. Rather than highlight a practical injustice, the exchange demonstrates the opportunities the applicant had to present his case. The applicant’s counsel had raised the issue of a potential change in the assessment of unsuitability to undertake community service work in the passage quoted at [19] above and returned to this issue after confirmation that the Form 1 matters were to be taken into account.

10. [64]

    No unfairness has been demonstrated. The applicant was not denied procedural fairness.

11. [65]

    The second obstacle to the success of the applicant’s appeal arises from the terms of the ground of appeal. The denial of procedural fairness is grounded on a “finding” by the Judge that the applicant’s “criminal history disentitled him to leniency”. No such finding was made by the Judge.

12. [66]

    Her Honour’s finding was confined to a disentitlement to leniency “that would otherwise be available to a person of good character”. [24] The judicial discretion to allow leniency is not all or nothing and may be a matter of degree. Indeed, this was recognised in written submissions. The applicant’s submission was for “some leniency”, whereas the Crown submission was confined to the applicant not being denied “any leniency”. Neither party submitted that the applicant would be entitled to leniency available to a person of good character, which as a matter of common sense was not to be extended to the applicant as a consequence of his prior criminal history.

13. [67]

    Although the Judge did not refer to s 21A(3)(e), it is plain that her Honour extended leniency to the applicant on account of his limited prior criminal history. Her Honour accepted that the applicant was otherwise of good character. Her Honour’s favourable findings to the applicant included his good prospects of rehabilitation and unlikelihood of reoffending.

14. [68]

    The ground of appeal has not been established.

Orders

1. [69]

   The orders I propose are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [70]

   LONERGAN J: I agree with Price J.