(1) Application for leave to appeal against sentence is granted. (2) The appeal is dismissed.
Category:
Principal judgment
Parties:
Michale Amante (Applicant) Regina (Respondent)
Representation:
Counsel: Mr T Ramrakha (Applicant) E Balodis (Respondent)
Solicitors: Legal Aid Commission of NSW (Applicant) NSW Solicitor for Public Prosecutions (Respondent)
File Number(s):
2018/106512
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court
Date of Decision:
01 May 2019
Before:
Judge Colefax SC
File Number(s):
2018/106512
Judgment
PAYNE JA: I agree with N Adams J.
BEECH-JONES J: The background to the application is set out in the judgment of N Adams J. I agree with her Honour’s conclusions and reasons in relation to ground 2.
In relation to ground 1, I agree with N Adams J that the challenge to the finding that fire entering the unit block’s roof void “posed a serious structural risk to the integrity of the building” should be addressed by considering the evidence that was said to support it and not by considering whether it was a matter in respect of which the sentencing judge could have taken judicial notice. It suffices to state that judicial notice could never support a finding about the probability of structural damage to a specific building, as opposed to say, the potential for fire to cause structural damage to a building.
The material said to support the finding made by the sentencing judge was the agreed facts and the photographs described by N Adams J at [59]. In that regard, it is necessary to say something about the role of this Court in relation to the reception and use of photographic evidence admitted at first instance. The issue has been addressed by the Court of Appeal, most recently in Goode v Angland [2017] NSWCA 311 (“Goode”) at [89] to [97] where Beazley P reviewed various decisions of that Court on this topic. Her Honour described those decisions as establishing “principles relating to the reception into evidence and the use that may be made of photographic evidence” (at [89]). Her Honour’s review included passages from various decisions that warn of the “care” that needs to be taken in relying on photographic evidence (eg, Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72 at [42]). However, some of the “principles” are expressed in prescriptive terms. Thus, for example, Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130, at [69]-[72] is cited in Goode for the proposition that “photographic evidence could not trump the direct evidence of witnesses that compelled acceptance” (Goode at [93]). Further, in Blacktown City Council v Hocking [2008] NSWCA 144 at [169], Tobias JA stated:
“It should be noted that the use by a trial judge…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Amante v The Queen [2020] NSWCCA 34
Case
[2020] NSWCCA 34
Decision Date
CaseChat Overview and Summary
Michale Amante appealed against his sentence imposed by Colefax SC DCJ sitting in the Parramatta District Court on 1 May 2019. The applicant was found guilty of intentionally or recklessly damaging a building by fire contrary to s 195(1)(b) of the Crimes Act 1900 (NSW), charged as a domestic violence offence: s 12 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The applicant was sentenced to imprisonment for 3 years and 9 months. The applicant relied upon two grounds of appeal. Ground 1 contended that the sentencing judge erred in taking “judicial notice” of the fact that the fire in the roof cavity “posed a serious structural risk to the integrity of the building.” Ground 2 alleged error in the way in which his Honour dealt with the applicant’s mental health issues; in particular in finding that they were “largely untreated and largely unresolved.” The Court held that the applicant's complaint regarding the photographs was that usually this is a matter for expert evidence. The Court held that although his Honour referred to taking judicial notice of the potential danger of the applicant’s actions, this first ground, in effect, was a challenge to a factual finding of the sentencing judge. The Court held that the evidence before his Honour was that the applicant had been afforded assistance for his drug problems in the past but had fallen back into drug use on each occasion. The Court held that it was open for his Honour to make the finding he did given the applicant’s history. The Court held that this was not a case where the judge departed without notice from a particular position. The Court held that it could not be said that the applicant would have been taken by surprise by his Honour’s finding in this regard. The Court held that the appeal was dismissed.