Samandi v Director of Public Prosecutions (NSW)

1. [1]

   THE COURT: On 13 December 2018, Ali Samandi was sentenced by his Honour Judge Norrish QC to an aggregate sentence of 6 years imprisonment commencing on 23 February 2017 and expiring on 22 February 2023 with a non-parole period of 3 years and 9 months expiring on 22 November 2020. Mr Samandi had pleaded guilty to three counts of assault, six counts of assault occasioning actual bodily harm and one count of intentionally damage property. Mr Samandi was also sentenced to a wholly concurrent term of 5 months imprisonment for an offence of contravening an apprehended domestic violence order which was before the court on a s 166 certificate. The victim of these offences was Mr Samandi’s wife.

2. [2]

   Mr Samandi has now lodged an appeal against his conviction and sentence to this Court. He raises three grounds of appeal against his conviction and sentence respectively, principal among which is a complaint that counsel appearing for him in the sentence proceedings failed to follow instructions, with the result that there was a miscarriage of justice. Mr Samandi contends that he gave instructions to his lawyers to withdraw his plea but that those instructions were not followed. Mr Samandi’s appeal is listed for hearing on 14 August 2020.

3. [3]

   Mr Samandi applies for bail pursuant to s 61 of the Bail Act 2013 pending the determination of his appeal. Section 61 is in these terms:

4. [4]

   The power of this Court to grant bail is constrained by s 22 of the Act which is in the following relevant terms:

5. [5]

   The s 22 “special or exceptional circumstances” test was dealt with in El-Hilli and Melville v R [2015] NSWCCA 146 at [10]-[29]. It was also considered in El Khouli v R [2019] NSWCCA 146 at [27] and [28]:

6. [6]

   Mr Samandi appears for himself. In the circumstances his submissions were not sharply directed to the issues of whether or not there were special or exceptional circumstances to justify the grant of bail or, in particular, whether he had either reasonable prospects of succeeding on his appeal or the grounds upon which he relied were reasonably arguable. However, we accept that Mr Samandi is contending that he can demonstrate each of these matters in combination with the fact that he is experiencing insurmountable difficulties preparing for his appeal in custody and that his appeal will effectively be rendered futile if he is not released having regard to the fact that his non-parole period is due to expire in November.

7. [7]

   It is convenient to consider the question of Mr Samandi’s prospects of succeeding on his appeal or whether the grounds upon which he relies are reasonably arguable by reference first to his appeal against conviction and secondly by reference to his appeal against sentence.

8. [8]

   Part of the material before us included a written instruction from Mr Samandi to his lawyers. It is in handwriting. The first four paragraphs appear to have been written by Mr Samandi’s lawyers. The fifth paragraph is in Mr Samandi’s handwriting. Mr Samandi has signed the document in two places. It is dated 16 October 2018, or approximately two months before he was sentenced. The document is in these terms:

9. [9]

   Apparently in accordance with those instructions, Mr Samandi’s lawyers proceeded to negotiate with the Crown. The end result of those negotiations was that Mr Samandi offered to plead guilty to the charges already referred to but a number of further charges of sexual intercourse without consent were withdrawn. The Crown accepted Mr Samandi’s offer on 18 October 2018.

10. [10]

    However, before he was sentenced, Mr Samandi wrote to his lawyers indicating that he wished to withdraw his plea. That letter is in his handwriting and is dated 1 December 2018. Part of the document is in these terms:

11. [11]

    We observe in passing that Mr Samandi specifically said in this Court when questioned that he did not in effect understand in October 2018 that any indications or assurances that his lawyers might have given him about what sentence he would receive if he pleaded guilty could not be relied upon and that his lawyers could not in fact guarantee what the sentencing judge might finally decide. Mr Samandi appeared in this Court to maintain that he pleaded guilty as the result of a trick. If Mr Samandi was intending to say on this application that his guilty plea was influenced by what his lawyers told him about the sentence he might receive, his contemporaneous reference in that letter to an absence of faith or confidence in their advice about a lighter sentence suggests that his current position cannot be accepted.

12. [12]

    It is apparent from the transcript of the sentencing proceedings before his Honour that Mr Samandi referred to his wish to reverse his plea. At one stage he interrupted the delivery of the sentencing remarks to say “I’m reversing my plea, I was tricked to take a deal”. Similar comments by Mr Samandi are repeated later. Mr Samandi indicated that he was not guilty and said “I didn’t do this thing”. His Honour did not take heed of these comments and proceeded to sentence Mr Samandi in accordance with the plea he had entered.

13. [13]

    The Crown case against Mr Samandi was very strong. As his Honour Hamill J noted in his reasons for rejecting Mr Samandi’s bail application on 31 January 2018, the Crown case was based upon a very lengthy and detailed statement provided by Mr Samandi’s wife extending over some 540 paragraphs, supported by diagrams and photographs of the injuries of which she complained. His Honour concluded that there were then unacceptable risks that could not be mitigated by the imposition of suitable conditions.

14. [14]

    However, by the time the case came to be dealt with in the District Court, the case against Mr Samandi had arguably become stronger. The Crown case statement included a reference to a letter written by Mr Samandi to his wife in terms that included certain admissions to the physical assaults of which she complained as follows:

15. [15]

    The circumstances in which a person might successfully appeal against conviction following a plea of guilty are well known. They were recently summarised by the Court of Criminal Appeal in Hunter Quarries Pty Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326 at [50]-[63]. It is sufficient for present purposes to observe that it is only where the material before the court discloses a real question as to the guilt of the accused person that the court will be likely to allow an appeal against a conviction entered following a plea of guilty. In the absence of some real question or doubt as to the guilt of the accused, and hence doubt about the integrity of the plea, it cannot be said that there has been a miscarriage of justice.

16. [16]

    The question of whether Mr Samandi can establish that there has been a miscarriage of justice in his case will ultimately be a matter for this Court to consider when Mr Samandi’s appeal is heard. Without wishing to foreclose that issue, it is difficult at this stage to see how the ground of appeal asserting that his plea of guilty should be set aside is reasonably arguable or that there are reasonable prospects of success. One of the significant difficulties in making any proper assessment of those questions for the purposes of considering his release application is that Mr Samandi bears the onus of establishing that special or exceptional circumstances exist and the only matter on which Mr Samandi relies in that regard is his assertion that his lawyers did not follow his instructions to make an application for him to withdraw his plea by reason of their incompetence or, on another view of Mr Samandi’s submissions, as the result of some improper or conspiratorial conduct on their part. It should be noted that despite Mr Samandi’s letter to his lawyers dated 1 December 2018, their instructions were not withdrawn and they continued to be instructed by Mr Samandi to appear for him at the sentencing proceedings.

17. [17]

    However, a more fundamental problem is likely to confront Mr Samandi with respect to his appeal against his conviction. Mr Samandi pleaded guilty after the jury in his trial had been empanelled. Section 157 of the Criminal Procedure Act 1986 therefore applies. That section is as follows:

18. [18]

    A predecessor to this provision was dealt with in R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61.

19. [19]

    Accordingly, following Mr Samandi’s pleas of guilty, his Honour was obliged to discharge the jury and find him guilty of the offences. That finding has effect as if it were the verdict of the jury. His Honour therefore had no power to permit Mr Samandi to withdraw his pleas. The fact that his Honour proceeded to sentence Mr Samandi despite what on one view was his application to withdraw his pleas is entirely explicable having regard to this section. Presumably as well Mr Samandi’s lawyers were aware of this provision and that it would have been futile to attempt to make any application on Mr Samandi’s behalf to withdraw his pleas. Mr Samandi’s only remaining avenue was to appeal against his conviction to this Court.

20. [20]

    It does not appear to us in these circumstances that Mr Samandi has established on this application that he has reasonable prospects of success on his conviction appeal.

21. [21]

    With respect to his sentence appeal, Mr Samandi contends that his lawyers failed to inform the sentencing judge about the existence of material relating to his health, in particular his mental condition. In short, Mr Samandi asserts that he suffered from a post-traumatic brain injury and that his condition was not properly or adequately brought to his Honour’s attention. The difficulty with that submission, however, is that it is not reflected in what his Honour said in dealing with these matters. His Honour in fact dealt very extensively with Mr Samandi’s psychiatric or psychological condition and complaints, in particular between pages 18 and 24 of his sentencing remarks. He dealt with the oft-cited principles discussed by McClellan CJ at CL in DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and the issues of the relationship between mental illness and general and specific deterrence and whether or not mental illness played any causative role in the commission of the offences. Part of what his Honour said is as follows:

22. [22]

    The identity of the psychologist to whom his Honour was referring is not revealed either in his Honour’s remarks on sentence or otherwise in the material relied upon by Mr Samandi in this Court. His Honour made it clear that he discounted the significance of the psychologist’s opinions inasmuch as they were dependent upon the history provided by Mr Samandi, about the veracity of which his Honour expressed doubts. That was significantly for the reason that Mr Samandi did not give evidence at the sentencing proceedings so that his Honour’s ability to verify what Mr Samandi told the psychologist was correspondingly reduced.

23. [23]

    Once again, Mr Samandi bears the onus of establishing that his argument on appeal, that his sentence was excessive by reason of his solicitor’s failure to bring his mental condition to the attention of the sentencing judge, is reasonably arguable or that there are reasonable prospects of success on appeal. Although not articulated in the clearest terms, Mr Samandi contends that even if there is a slim chance that his sentence might be reduced by this Court on appeal, any success that he might achieve in that regard will, or would, be rendered futile having regard to the fact that by the time his appeal is heard or decided, he will have served the significant bulk of his non-parole period. Despite the detail with which the sentencing judge dealt with Mr Samandi’s mental health, he maintained in this Court that the absence of crucial medical reports substantially denied him procedural fairness and “unquestionably deprived him of mitigating circumstances for his sentence”.

24. [24]

    There is some support for the suggestion that his Honour was not provided with all of the medical material dealing with his mental health upon which Mr Samandi may have wished to rely. In the nature of the way in which the matters were presented in this Court, it is not possible to determine whether Mr Samandi contends that there is only medical evidence that was available to be used but which was not tendered as he wished or that there may now be evidence that has since become available that informs the state of his mental health in December 2018. There was understandably no discussion in this Court about the distinction between new and fresh evidence. The matter is to some extent analogous to the situation dealt with by this Court in Rae v R [2019] NSWCCA 284. In that case the following appears:

25. [25]

    Scant material was produced on the present application for the purposes of determining either whether there is now or was in December 2018 uncalled evidence that might further have informed Mr Samandi’s claim that his mental illness was not adequately considered by his Honour or where the fault, if any, for the omission to put such evidence before his Honour may lie. As in Rae, the proper venue for that contest must ultimately be this Court when it hears Mr Samandi’s appeal.

26. [26]

    However, Mr Samandi did refer to some medical evidence that he contended would favourably have influenced his Honour in his sentencing deliberations if it had been available. Mr Samandi drew this Court’s attention to the reports of Dr Evelyn Howe, a psychologist, dated 30 November 2007, Fleur Bishop, a psychologist, dated 28 April 2008 and Dr George D A Lord, a consultant physician neurologist, dated 24 July 2008.

27. [27]

    Dr Lord took a history from Mr Samandi of having been struck on the forehead with a pool cue on 11 January 2007. Mr Samandi said that he was tackled to the ground and hit hard with the cue, rendering him semi-conscious and in pain. Blood was gushing from his head. He was taken by ambulance to Liverpool Hospital where he remained as an inpatient for three to four weeks. He had surgery to help reconstruct his damaged orbit. Mr Samandi told Dr Lord that he thereafter became aware of changes in his personality and mood. He related that he considered that there had been deterioration in his ability to make sensible decisions. He became less confident and extremely depressed.

28. [28]

    Dr Lord wrote this:

29. [29]

    Dr Howe’s report was to a similar effect. However, it does appear that not all of her report has been provided to us.

30. [30]

    In his consideration of the (unidentified) psychologist’s report upon which Mr Samandi relied in the sentencing proceedings, his Honour said this:

31. [31]

    Mr Samandi contends that his Honour did not have any evidence or history of his frontal lobe dysfunction that arguably led to, or was connected with, his tendency to lose appropriate awareness of the consequences of his actions and his lack of ability to control himself. Mr Samandi maintains that evidence of those conditions or propensities, sufficiently documented and explained, may have resulted in his Honour forming a different view about the possible relationship between Mr Samandi’s anger and loss of self-control and the offences in question. Mr Samandi insists that he gave clear instructions to his former solicitor, Mr Abbas, to obtain his mental health history from the Department of Communities and Justice and NSW Victims Services but that those instructions were not heeded.

32. [32]

    Whether Mr Samandi can establish his ground of appeal, that there has been a miscarriage of justice because his defence counsel failed to follow his instructions to bring his full medical condition to his Honour’s attention, remains to be seen. Although the amount of time left to serve on his non-parole period may be small in relative terms, it would be wrong to treat the extent of any benefit that Mr Samandi might secure on appeal in any way as a reliable indicator of whether he has satisfied the onus that he bears on this application. In our opinion, it cannot be said that Mr Samandi’s contention, that a consideration of the additional medical evidence will result in him being resentenced and his non-parole period being reduced, is not reasonably arguable or that there are not at least some reasonable prospects of success on that aspect of his appeal.

33. [33]

    Mr Samandi also raises the question of his ability properly to prepare for his appeal in his present custodial situation. As difficult and unfortunate as may be the position in which he finds himself even, or perhaps particularly, as an unrepresented party, these are matters that confront all inmates in his position. We do not consider that these difficulties or his custodial situation are matters that qualify as special or exceptional circumstances standing alone. However, for the reasons above, they should be taken as part of the combination of factors to be matters of at least some significance.

34. [34]

    In summary, we are of the view that Mr Samandi has established that there are special or exceptional circumstances that justify his release. That is because it cannot be said that his sentence appeal is not reasonably arguable or that there are not at least some reasonable prospects of success, taken in combination with the fact that Mr Samandi’s appeal is listed for hearing on 14 August 2020, his non-parole period expires on 22 November 2020 and his custodial status is adversely affecting his ability as an unrepresented litigant properly to prepare for his appeal.

Bail concerns

1. [35]

   When Mr Samandi originally applied for bail in January 2018, the Crown identified all of the matters referred to in s 17(2) of the Bail Act 2013 as relevant bail concerns. As already noted, following Hamill J’s refusal of his application, Mr Samandi has remained in custody both on remand and serving his sentence. His non-parole period is due to expire in November.

2. [36]

   The Crown did not refer to any particular bail concerns on the present application. In our opinion, none of the concerns originally identified continues to present an unacceptable risk.

3. [37]

   One of Mr Samandi’s significant motives for seeking a release order is that he will be able to satisfy this Court on appeal that any non-parole period imposed upon him following a re-sentence would mean that he will not, if released, be required to return to custody. It seems highly unlikely that Mr Samandi would imperil any prospect of success he may have on that argument by approaching the victim of his offences in any way. Even though there is evidence to suggest that he did this via a third party on an earlier occasion, that is now a number of years ago and there is no suggestion that it has reoccurred recently. It would also be inimical to Mr Samandi’s prospects of success on appeal if he were to fail to appear in order to prosecute it. In any event, the concept of failing to appear in the post-conviction context is obviously a matter of reduced significance.

4. [38]

   To the extent that there are any remaining risks attending Mr Samandi’s release on bail, we are of the view that they can be mitigated by the imposition of appropriate conditions. Accordingly, Mr Samandi’s application for a release order should be granted, subject to the following conditions:

   1. (1)

      He is to be of good behaviour.

   2. (2)

      He is to reside at XXX XXX XXX, Castle Hill.

   3. (3)

      He is to report to Castle Hill Police Station daily between the hours of 8am and 8pm.

   4. (4)

      He is not to be absent from the address at which he is required to reside except for the purposes of attending court, reporting to police, seeking urgent medical attention or to attend a pre-arranged medical or mental health assessment or appointment.

   5. (5)

      He is not to have any contact of any sort either directly or indirectly with XXX XXX.

   6. (6)

      He is not to apply for any new passport or travel document.

   7. (7)

      He is not to go within 1km of any point of international departure.

5. [39]

   Finally, it should be noted that during the hearing of this application, it emerged that the Crown did not have a number of documents to which Mr Samandi was referring in his oral submissions and upon which he evidently was placing considerable reliance. These documents in fact included some additional detailed written submissions from him. In those circumstances we gave the Crown an opportunity to provide the Court with its own further written submissions dealing with these matters if so desired. In the events that occurred, the Crown provided very detailed and helpful written submissions to which we have had particular regard.