Anae v R

[2018] NSWCCA 73

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Anae v R [2018] NSWCCA 73
Hearing dates:	19 March 2018
Date of orders:	20 April 2018
Decision date:	20 April 2018
Before:	Hoeben CJ at CL at [1]; Johnson J at [2]; Price J at [3]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIME – appeal against sentence – recklessly inflicting grievous bodily harm – whether approach by sentencing judge gave rise to a reasonable apprehension of bias – whether error in not finding special circumstances – whether error in not finding remorse – whether lesser sentence warranted
Legislation Cited:	Crimes Act 1900 (NSW) s 35(2) Crimes (Sentencing Procedure) Act 1999 (NSW) s 12
Cases Cited:	Antoun v R [2006] HCA 2; 224 ALR 51 Ellis v R [2015] NSWCCA 262 Hudd v R [2013] NSWCCA 57 Imbornone v R [2017] NSWCCA 144 Jiang v R [2010] NSWCCA 277 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Pattalis v R [2013] NSWCCA 171 R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Sutton [2004] NSWCCA 225 Tarrant v R [2018] NSWCCA 21
Category:	Principal judgment
Parties:	Marlo Anae (Applicant) Regina (Respondent)
Representation:	Counsel: M Finnane QC and N Carroll (Applicant) F Veltro (Respondent)   Solicitors: George Sten & Co (Applicant) Solicitor of Public Prosecutions (Respondent)
File Number(s):	2016/134464
Publication restriction:	No
Decision under appeal	Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 10 March 2017 Before: Colefax SC DCJ File Number(s): 2016/134464

Judgment

1. HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.

2. JOHNSON J: I agree with the reasons of Price J and the orders proposed by his Honour.

3. PRICE J: Marlo Anae, the applicant, seeks leave to appeal against the sentence imposed on him in the District Court at Parramatta on 10 March 2017.

4. The applicant had pleaded guilty in the Local Court to one count of recklessly causing grievous bodily harm to Joseph Reopoama (“the victim”) on 1 May 2016, contrary to s 35(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years imprisonment with a standard non-parole period of 4 years. He adhered to his plea in the District Court.

5. After allowing a 25 per cent discount for the utilitarian value of the plea of guilty, Judge Colefax SC (“the judge”) sentenced the applicant to a term of imprisonment of 4 years 6 months. The judge fixed a non-parole period of 3 years 4 months commencing on 4 February 2017 and expiring on 30 June 2020, with a balance of term of 1 year 2 months expiring on 3 August 2021.

The grounds of appeal

6. The applicant relies on the following grounds of appeal:

“(1) To a fair-minded independent observer the sentencing Judge’s conduct throughout the proceedings could have given rise to an apprehension of bias against the offender, before judgment was passed.

(2) That his Honour erred in not finding special circumstances.

(3) That his Honour erred in not finding any demonstration of genuine remorse.

(4) That the overall sentence imposed was manifestly excessive.”

Facts

7. An agreed statement of facts was tendered which his Honour recounted in his sentencing remarks.

8. Shortly stated, the applicant and Ms Faletolu Vaega are cousins.

9. In about early March 2016, Ms Vaega and the victim commenced an intimate relationship. In the early hours of 1 May 2016, Ms Vaega drove with the victim to the applicant’s house. After getting out of the vehicle, the victim went into the backyard of the premises where the applicant was with a number of other people, including his wife. They had been socialising and drinking alcohol that evening commencing at about 7pm. The applicant had consumed about 12 bottles of beer by the time the victim had arrived at his home.

10. The victim approached the applicant in the backyard and told the applicant he was with his girlfriend Ms Vaega and a couple of friends. The victim asked if they could come in for a drink. He then returned to the vehicle and the applicant followed him.

11. The applicant’s wife also followed the couple and approached Ms Vaega, informing her that they should leave. She indicated that she was concerned about the applicant’s reaction to learning of the relationship between Ms Vaega and the victim. Ms Vaega and the victim agreed to leave.

12. The applicant called out to the victim who walked back towards him. The applicant told the victim they needed to talk. After they walked together along the street for a short distance, the applicant hit the victim in the mouth with his open right hand. The victim fell backwards and struck his head on the roadway.

13. The applicant ran away and returned when police arrived, lying to them that he had run off to look for the assailant.

14. The victim was taken to Westmead Hospital by ambulance. He suffered fractures to his skull, intracranial haemorrhage, contusions of his brain, and ligamentous injury to his cervical spine. He was discharged from hospital on 3 June 2016.

15. The applicant attended the police station the next day and participated in an interview. He told police that he regarded Ms Vaega as a sister, that he was angry because the victim was with Ms Vaega, and that he intended to “just whack him and tell him not to see her anymore”.

16. Included in the material placed before the judge was an “expert certificate” provided by Dr Rebecca Martens, the staff specialist in Rehabilitation Medicine and Team Leader of the Westmead Adult Brain Injury Outreach Service.

17. Dr Martens reported that the victim was admitted to Westmead Hospital Emergency on 1 May 2016 and a CT brain scan was consistent with traumatic injury. The victim required admission to the Intensive Care Unit and neurological intervention with the insertion of an extraventricular drain. He remained under the care of the neurosurgeons until discharged home on 3 June 2016. The duration of post traumatic amnesia was 31 days which was “consistent with an extremely severe traumatic brain injury”.

18. A neuropsychological assessment was completed at the Westmead Brain Injury Unit on 15 September 2016. Dr Martens reported that the results of this assessment were consistent with a good overall recovery from an extremely severe traumatic brain injury. The victim’s cognitive strengths included his ability to learn, remember and analyse visual information, independent problem solving, attention, and concentration. Difficulties the victim encountered on testing included inefficient learning of unorganised information, difficulty when required to think of a range of verbal ideas, some evidence of slowed processing, and reduced self-awareness of fatigue. At the time of the neuropsychological assessment, the victim had commenced a graded return to work and had not encountered any difficulties with his work role. His sense of smell and taste continued to be reduced.

19. Dr Martens reported that “overall” the victim had made a good recovery. While there may be some further modest improvements in his mild cognitive difficulties and reduced sense of smell and taste, these impairments were likely permanent in nature.

Subjective circumstances

20. The applicant did not give evidence before the judge, however, a report of a forensic psychologist, Ms Anne Lucas, five character testimonials, and a discharge summary were tendered in his case.

21. The applicant’s background is drawn from the psychologist’s report. The applicant was born in New Zealand on 10 May 1989 and moved to Australia with his family in 2000. He was 27 years old at the time of offending and 28 years old when sentenced.

22. The applicant completed his Year 10 schooling in 2004 and then obtained work with his father as a labourer in an air-conditioning factory. At the time of offending, he was employed on a casual basis as a labourer in a warehouse.

23. The applicant married at the age of 20. He and his wife had four children aged between seven and two. At the time of sentence, Mrs Anae was pregnant with their fifth child and financially reliant upon the applicant.

24. Ms Lucas reported that the applicant commenced drinking alcohol around the age of 15 years and that he has little control over his alcohol consumption once he starts to drink.

25. Ms Lucas was informed by the applicant that he was aware that he was quick to anger but was usually able to keep his angry impulses under control unless he was intoxicated. The psychologist opined that whether the applicant could avoid future alcohol/substance abuse was a key risk factor for further offending.

26. As to the applicant’s attitude to the offence, Ms Lucas noted that the applicant advised that he had been heavily intoxicated at the time of the offence, having consumed over a dozen beers at a backyard party at his house. He denied feeling a sense of ownership over his cousin and her relationships, although he did state that as an elder man in the family, he felt responsible for her well-being.

27. The applicant told Ms Lucas that he intended to talk with the victim and to tell him that he was to end the relationship with his cousin. He recalled that he slapped the victim in the face with his open hand. He said that he could not clearly remember what had been said between them immediately prior to that occurring. The applicant was adamant that he had only meant to “slap” the victim and had not intended to cause him serious harm.

28. The psychologist reported that the applicant “advised in hindsight he realised that his actions had been reckless and wrong and he regretted the harm caused to the victim”.

29. Five character testimonials were tendered, including one from the applicant’s wife, three from members of his church community, and one from a work colleague. Each testimonial made reference to the applicant’s “regrets” or “remorse” and described his character in positive terms as a strong family man, a well-respected member of the church community, and a good worker.

30. The applicant’s criminal history as an adult discloses convictions and fines in 2007 for offences of resisting police in the execution of duty and failure to comply with a direction. In July 2008, the applicant was convicted for assaulting a police officer in the execution of duty and was sentenced to 10 months imprisonment, which was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”). For the offences of resisting a police officer in execution of duty and destroy or damage property, he was convicted and sentenced to a total of 100 hours of community service. In June 2011, for the offence of destroy or damage property, he was convicted and sentenced to an intensive correction order (“ICO”) of 9 months. In October 2011, for the offence of destroy or damage property, the applicant was convicted and sentenced to 9 months imprisonment with a 6 month non-parole period. In May 2014, he was convicted and sentenced to 9 months imprisonment which was suspended under s 12 of the Act. Conditions of the bond included attending Alcoholics Anonymous and any programs regarding alcohol counselling as directed by the Probation and Parole Service.

The proceedings on sentence

31. During the proceedings on sentence before the judge, the applicant was represented by Ms Sten, a solicitor. After the Crown case was closed, Ms Sten tendered Ms Lucas’s report, the character testimonials, and the discharge summary. As to the character testimonials, the following exchange took place between the judge and Ms Sten:

“HIS HONOUR: None of the referees seem to know that he has received four previous sentences of imprisonment. Their opinions don’t carry very much weight.

STEN: I am sorry your Honour?

HIS HONOUR: None of the referees have indicated that they know that your client has been sentenced to four previous terms of imprisonment.

STEN: No they don’t.

HIS HONOUR: Which is what a s 12 and an intensive correction order is. So when they tell me he is a man of good character they don’t know who they’re talking about. Ring for correctives, his bail is revoked. There is no sentence other than full-time custody Ms Sten, and he knows we will start doing it at lunchtime today. How long will I hear from you after lunch?

BAIL REVOKED

HIS HONOUR: I am sure they were prepared for this Ms Sten?

STEN: Your Honour, I actually –

HIS HONOUR: And if they weren’t prepared then that was an oversight that should not have occurred.

STEN: Well your Honour with the greatest respect whether people are prepared for it or not it still comes as an emotional shock when it happens.

HIS HONOUR: I am sure. Thank you officers, this is Mr Marlo Anae and I am revoking his bail. Take him into custody please.” [1]

1. Transcript 1, 16 February 2017, 3.

32. After the luncheon adjournment, there was further discussion between his Honour and Ms Sten which included:

“HIS HONOUR: Is there any further evidence in the offender’s case, Ms Sten, apart from those documents?

STEN: No, your Honour.

HIS HONOUR: You should know Ms Sten, I don’t know if you’ve ever appeared in front of me on a– I know you have appeared in front of me many times, Ms Sten, I haven’t lost long or short-term memory but I can’t remember the details of the sentences so that I want to remind you that my practice is that where an offender does not give evidence of remorse and from the witness box then unless there are exceptional circumstances such as the offender being intellectually impaired or there being some good reason, then I come to a particular, I approach with scepticism any second-hand expression of remorse given through a psychologist’s report and the like.

STEN: Yes, your Honour.

HIS HONOUR: Just as long as I—

STEN: Yes, I did know that, your Honour.

HIS HONOUR: I thought you did, all right. Eyes wide open then, in other words.

STEN: Yes.

HIS HONOUR: Yes, I’ll hear your submissions now thank you, Ms Sten.

STEN: Your Honour, I won’t be handing up written submissions. I heard what your Honour said just before lunch and I understand your Honour has taken the view that no other sentence other than full-time custody is warranted for this. I was, a lot of my written submissions actually dealt with an ICO for the—

HIS HONOUR: Ms Sten, that may be the– that is the view I take.

STEN: Yes.

HIS HONOUR: But if you have a different view [sic], I wouldn’t abandon your submissions if I were you because you might want to protect yourself if you want to go to another place after the sentence.

STEN: Yes, I understand that your Honour, but I’m going to make them orally.

…

HIS HONOUR: I wasn’t for one moment impugning the honesty of the referees. What I was pointing out was that they seemed not to be aware of the fact that he had four other gaol sentences which were dealt with either by way of section 12 or an ICO assessment. If they had known about that it was unlikely they could have said this offence was out of character because he has four serious offences of violence on his record. It’s not out of character at all.

STEN: Yes, your Honour, but as I said these people aren’t particularly sophisticated.

HIS HONOUR: I was not critical of them.

STEN: Yes.

HIS HONOUR: The inference I’ve drawn is that they don’t know about these things.

STEN: Well, his wife certainly does know because she’s lived with him all those times. It’s just—

HIS HONOUR: Ms Sten, I’ve had people come to court, walk through that door knowing they’re going to face gaol and their families have no idea where they are, that the solicitor for the offender has had to ring up the parents or the wife from court. Some people just don’t, can’t bring themselves to tell their spouse or their family what they’ve done.

STEN: His wife was there on the night of this incident, your Honour. She was one of the witnesses. Be that as it may, your Honour has seen he is a family man. That he certainly is. He cares about his wife, he cares about his children. Regarding the objective seriousness of this offence, in my respectful submission your Honour, this is below, it’s on the lower half of the range and I say that for the following reason. He wanted to warn off this prospective boyfriend of his niece. He was upset that the victim was with his niece without his prior knowledge.” [2]

2. Transcript 2, 16 February 2017, 1 – 3.

33. In further oral submissions, Ms Sten put to the judge that the offence could have been dealt with in the Local Court and the maximum penalty would have been two years. The following exchange then took place between Ms Sten and his Honour:

“STEN: I say that, your Honour, because I would urge your Honour to take that into consideration when your Honour is imposing sentence which is why I was originally going to urge your Honour for an ICO because if your Honour is minded that this sentence is a two year sentence, then I would ask your Honour to have him assessed for an ICO and if he’s assessed as suitable, to your Honour make that order.

HIS HONOUR: Whatever the length of the term, Ms Sten, the objective seriousness of this offence requires full-time custody, not an intensive correction order.

STEN: Well, your Honour’s obviously against me on that one.” [3]

3. Transcript 2, 16 February 2017, 8.

34. Ms Sten asked the judge to find special circumstances being the applicant’s alcohol related problems.

35. The Crown accepted that the applicant had expressed remorse. When asked by his Honour what the Crown’s submission was on special circumstances, the following discussion ensued:

“WHITE: The Crown accepts what my friend has mentioned in terms of the offender’s need and desire to rehabilitate himself and that is also an aspect of one of the purposes of sentencing also.

HIS HONOUR: Is the Crown making a concession of special circumstances? This will be his first time in custody. The Court of Criminal Appeal has said the fact that it is a person's first time in custody is not of itself sufficient to vary the ratio of the head sentence to the non-parole period. The factor specifically relied upon by the offender is that he needs a longer period of parole to address his alcohol problems but that has to be looked at in the circumstance that he has been on at least two section 12 bonds and an intensive correction order, all of which should have been designed to address that question and therefore what does the Crown say about whether his prospects of rehabilitation would be enhanced by a longer period on parole.

WHITE: The Crown does accept that the offender could benefit from being on parole and having greater access to avenues of rehabilitation however they will have to, if this is the path that your Honour is considering–

HIS HONOUR: No, no I'm just asking you what your submission is.

WHITE: I would raise concern with the fact that he has had orders of rehabilitation from the courts previously including the ICO that was ordered on 23 June 2011 and it was on 6 May 2014 that he was required to attend Alcoholics Anonymous and the alcohol counselling programs and these are rehabilitative orders that have been made by the courts previously and have been found to be unsuccessful given the sentence today.

HIS HONOUR: Are you going to bite the bullet and tell me whether you concede it or not?

WHITE: Your Honour, I would say that it is conceded but guarded to some degree.” [4]

4. Transcript 2, 16 February 2017, 11 – 12.

36. At the conclusion of submissions, the judge stood the matter over to 10 March 2017 for sentence.

Some findings of the judge

37. In his sentencing remarks, the judge recounted that the applicant justified striking the victim by saying that he regarded Ms Vaega as a sister, that he was angry with the victim for being in a relationship with her, and that the blow had been intended to discourage the victim from seeing Ms Vaega any further. His Honour said that “explanation” was no justification for the applicant’s behaviour and was completely unacceptable in contemporary Australian society.

38. His Honour observed that the victim sustained an extremely traumatic brain injury as a consequence of his head striking the roadway. Whilst the victim had made a good overall recovery, mild cognitive impairments remained, including some changes in personality, and there was a marked reduction in his capacity to smell and taste.

37. The judge found that “[i]n terms of its subjective [sic] seriousness for an offence of its kind it is above a mid-range offence”. [5]

    5. Remarks on Sentence, 10 March 2017, 4.

38. His Honour said that the applicant “did not give evidence in the sentence hearing notwithstanding that his solicitor was expressly warned that might have consequences in relation to any second-hand expressions of remorse”. [6] His Honour referred to the applicant’s “purported” expression of remorse to Ms Lucas and said that he viewed it “with considerable scepticism”. [7] The judge was not satisfied on the balance of probabilities that there was genuine remorse.

    6. Remarks on Sentence, 10 March 2017, 5.

    7. Remarks on Sentence, 10 March 2017, 7.

39. The judge found the applicant’s criminal history to be unfavourable. His Honour observed that between 2008 and 2014, the applicant had received four previous sentences of imprisonment, including one offence of personal violence for assaulting a police officer and three offences for destroying or damaging property.

40. His Honour noted that the applicant had abused alcohol since he was 15 years old, and according to the psychologist report “whilst under the influence of alcohol he has problems with ‘emotional reactivity and impulse control’”. [8] The judge expressed concern that since his arrest the applicant had taken “no formal rehabilitation steps … to address his long term drinking issues”. [9] His Honour concluded that because of an absence of genuine remorse and the applicant’s repeated failure to adequately address his long term alcohol issues, the applicant’s prospects for rehabilitation were “guarded at best”. [10]

    8. Remarks on Sentence, 10 March 2017, 5.

    9. Remarks on Sentence, 10 March 2017, 6.

    10. Remarks on Sentence, 10 March 2017, 7.

41. The judge adverted to R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 and observed that he was bound to give effect to the guidance provided by that judgment. The judge found that no sentence other than full-time imprisonment was appropriate. [11]

    11. Remarks on Sentence, 10 March 2017, 8.

42. His Honour declined to find special circumstances “notwithstanding a concession by the Crown that it might be open to the Court to do so”. [12] His Honour allowed a 25 per cent discount for the utilitarian value of the applicant’s guilty plea.

The appeal

Ground 1: To a fair-minded independent observer the sentencing judge’s conduct throughout the proceedings could have given rise to an apprehension of bias against the offender, before judgment was passed

12. Remarks on Sentence, 10 March 2017, 7.

Argument

45. The applicant contended that there were a number of events that occurred during the proceedings on sentence which considered together could give rise to an apprehension of bias against the applicant. They were:

1. The revocation of bail by the judge without warning and without hearing from either party;

2. The determination by the judge that full-time imprisonment was the only option without hearing from the applicant’s solicitor;

3. The judge’s outright rejection of the character testimonials;

4. The judge’s presumption that the attesters did not know about the applicant’s previous penalties;

5. The judge’s characterisation of the applicant’s criminal history to be unfavourable, with four very serious “violent” offences, even though there was only one conviction for personal violence;

6. An expectation that the applicant should have already sought counselling and put evidence of it before the Court;

7. An exchange between the judge and the applicant’s solicitor suggesting that a demonstration of remorse was dependent on the applicant having written a letter of apology to the victim; and

8. The judge’s comment that the applicant “binge drinks and commits crimes that result in over and over again periods of imprisonment and who does not take any steps at meaningful rehabilitation” [13] which was arguably unsupported by the evidence, particularly in light of evidence of previous attempts at rehabilitation.

   13. Proceedings on Sentence, 16 February 2017, 7.

46. The applicant submitted that, to a fair minded observer, the comments by the judge were suggestive that he did not bring an impartial and unprejudiced mind to the sentencing of the offender during the sentence proceedings and before judgment was passed. In oral submissions, Queen’s Counsel for the applicant argued that the circumstances of the proceedings on sentence were materially similar to those in Antoun v R [2006] HCA 2; (2006) 224 ALR 51 (“Antoun”), particularly with respect to the revocation of the applicant’s bail and the indication that a sentence involving full-time imprisonment was pre-determined.

47. The Crown pointed out that prior to revoking bail the judge had the benefit of the Crown sentence bundle, Ms Lucas’s report, and the character testimonials. The Crown submitted that on the basis of that material, it was open to his Honour as part of his “instinctive synthesis” to come to a view in all of the circumstances that a full-time custodial sentence was required and it was appropriate to revoke the applicant’s bail before the luncheon adjournment. The Crown argued that the proceedings on sentence as a whole did not support the conclusion that there was an apprehension of bias.

48. The Crown contended that the judge heard the applicant’s submissions after the adjournment, but found that the objective seriousness of the offence required full-time imprisonment. In these circumstances the judge did not prevent “[the applicant] from properly presenting [his] case”. [14]

    14. Ellis v R [2015] NSWCCA 262 at [65].

49. The Crown put to the Court that the character testimonials did not address the applicant’s prior offending or continuing violent behaviour when under the influence of alcohol. It was submitted that any assertion in the testimonials that his offending “was out of character” was unrealistic.

Consideration

50. The test for apprehended bias is uncontroversial and the relevant principles were summarised by this Court (Basten JA, RA Hulme J and Hidden AJ) in Tarrant v R [2018] NSWCCA 21 at [9]:

“[9] There was no issue in this Court that, where actual bias is not alleged, the legal test, as expressed in Johnson v Johnson, requires the court to be satisfied that ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.’ The High Court has reaffirmed the salience of the test on subsequent occasions, including in Michael Wilson & Partners Ltd v Nicholls. The so-called ‘double might’ test is by no means easy to apply: its application requires attention to four discrete elements.

(1) First, there is the postulate of the ‘fair-minded lay observer’. Use of that expression reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not, as explained in Johnson v Johnson, ‘the assessment by some judges of the capacity or performance of their colleagues.’

(2) Secondly, the test has been described as ‘objective’, by which is meant a third party’s assessment of the judge’s conduct and capacity, and not, as with actual bias, an assessment of the judge’s own state of mind.

(3) Thirdly, there is said to be a two-stage process required; it is necessary to articulate ‘the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making.’

(4) Fourthly, use of the term ‘might’ lowers the burden of proof below that of probabilities. Thus the court need not be satisfied that the fair-minded lay observer ‘would’ have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities.” (Footnotes omitted.)

51. In recent years, the criminal caseload of the District Court has substantially increased. Judges of the Court are faced with the onerous task of dealing efficiently with their criminal work, which includes sentencing proceedings. A judge is neither prevented from forming a preliminary view of the appropriate sentence to be imposed nor is a judge obliged to listen endlessly to meritless arguments. However, notwithstanding that efficiency is a laudable objective; the principles of impartiality and procedural fairness require a judge to give some time to an offender’s arguments which are to be listened to with an unfixed mind. As Callinan J observed in Antoun at [81] – [83]:

“[81] … Judges can and do form preliminary views, sometimes quite strong ones. They should understand however that those views must not be fixed ones. From the first day of a prospective lawyer’s education, and throughout a practitioner's and a judge’s professional life, the importance of actual and apparent fairness, and the need for actual and apparent abstention from prejudgment are repeatedly stressed. The aphorism, that justice must not only be done, but also must be seen to be done, remains true…

[82] …

[83] It should be noted that the test as stated emphasises that a possibility, that is relevantly to say, the appearance of a possibility of an absence of an impartial mind on the part of the judge, may lead to disqualification. Their Honours also make it clear that the test does not involve, or require an inquiry into the facts or matters which brought the apprehended state of mind of the judge to one of apparent bias. It follows that the fact that the case may not only at the time, but also in retrospect, seem to be a strong one, indeed a very strong one, does not absolve the judge from giving it a fair hearing, and attending carefully and open-mindedly to the submissions of the parties made at appropriate times.”

52. All of the material placed by the Crown before his Honour pointed strongly to there being no alternative to a sentence of full-time imprisonment. The tender of the psychologist’s report and the character testimonials did little to suggest that some other sentence was appropriate. His Honour, with good reason, formed the view that a sentence of full-time custody should be imposed, but he did so without giving the applicant’s solicitor the opportunity of advancing the argument that a sentence of imprisonment should be served by way of an ICO.

53. Without hearing from Ms Sten or the Crown, the judge revoked the applicant’s bail. A fair-minded lay observer might reasonably apprehend that the judge, who had determined that the applicant was to be sentenced to full-time imprisonment and that his bail was to be immediately revoked without hearing from his solicitor, might not bring an impartial and unprejudiced mind to his sentencing task.

54. After the luncheon adjournment, his Honour gave Ms Sten the opportunity to make submissions but it is evident from the following exchange that they would have no impact on his Honour’s determination that full-time imprisonment was the only appropriate sentence:

“HIS HONOUR: Yes, I’ll hear your submissions now thank you, Ms Sten.

STEN: Your Honour, I won’t be handing up written submissions. I heard what your Honour said just before lunch and I understand your Honour has taken the view that no other sentence other than full-time custody is warranted for this. I was, a lot of my written submissions actually dealt with an ICO for the—

HIS HONOUR: Ms Sten, that may be the– that is the view I take.

STEN: Yes.

HIS HONOUR: But if you have a different view [sic], I wouldn’t abandon your submissions if I were you because you might want to protect yourself if you want to go to another place after the sentence.” [15] (Emphasis added.)

15. Transcript 2, 16 February 2017, 1 – 3.

55. The applicant’s right to a fair hearing required the judge to listen to Ms Sten’s submissions and to carefully consider them without pre-judgment. This, in my respectful opinion, his Honour failed to do.

56. The criticism of the judge’s references to the applicant’s prior criminal history is without merit, as the applicant had been sentenced to four terms of imprisonment that had been served by way of a suspended sentence or ICO. His Honour was also entitled to give little weight to the opinions in the character testimonials as none of them made mention of the applicant’s prior offending. It was open to Ms Sten to call the applicant’s wife to give evidence as to her knowledge of the applicant’s criminal record, as Mrs Anae was present during the sentencing proceedings.

57. I would uphold this ground of appeal. Accordingly, it will be necessary that this Court exercises the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The remaining grounds of appeal will be dealt with some brevity.

Ground 2: That his Honour erred in not finding special circumstances

Argument

58. The applicant submitted that special circumstances should have been found to promote further and additional attempts at rehabilitation on parole which, if successful, would promote his rehabilitation and the protection of the community.

59. It was argued that the judge’s consideration of the commentary of higher courts that findings of special circumstances are too frequently and impermissibly imposed, is not a relevant consideration when assessing whether special circumstances should have been imposed in the applicant’s individual case, where both parties had conceded that special circumstances should be imposed.

60. The Crown argued that the discretionary nature of finding special circumstances is well-established, and that the Crown’s “guarded” concession did not bind the judge. The Crown submitted that his Honour did not err in finding no special circumstances and took into account all relevant factors before rejecting the submission.

Consideration

61. During the proceedings on sentence, the Crown told the judge that special circumstances were conceded “but guarded to some degree” (see [35] above). However, the judge was not bound by this concession. In any event, a finding of special circumstances is a discretionary finding of fact and this Court will be slow to intervene. [16] It was within the proper exercise of his Honour’s discretion not to find special circumstances.

    16. See for example: Jiang v R [2010] NSWCCA 277 at [83]; Hudd v R [2013] NSWCCA 57 at [171].

62. I would reject this ground.

Ground 3: That his Honour erred in not finding any demonstration of genuine remorse

Argument

63. The applicant contended that the judge should not have precluded the finding that genuine remorse had been demonstrated by the applicant solely because he had not given evidence on sentence. Genuine remorse was said to be demonstrated by the applicant handing himself in to the police the day after the incident, making full admissions, and his plea of guilty.

64. Further, the applicant submitted that his reported determination to undergo treatment to maintain his sobriety should not have been rejected simply because it was expressed second-hand to the psychologist. The applicant’s statements to the psychologist were submitted to be “not isolated random claims of remorse, but rather supported by [the applicant’s] actions prior to sentencing”, including his co-operation with police and plea of guilty, which should have given weight to the statements.

Consideration

65. The applicant had expressed remorse to Ms Lucas and to the authors of the testimonials presented on his behalf. However, during the proceedings on sentence, the judge told Ms Sten:

“HIS HONOUR: You should know Ms Sten, I don’t know if you’ve ever appeared in front of me on a– I know you have appeared in front of me many times, Ms Sten, I haven’t lost long or short-term memory but I can’t remember the details of the sentences so that I want to remind you that my practice is that where an offender does not give evidence of remorse and from the witness box then unless there are exceptional circumstances such as the offender being intellectually impaired or there being some good reason, then I come to a particular, I approach with scepticism any second-hand expression of remorse given through a psychologists report and the like.

STEN: Yes, your Honour.

HIS HONOUR: Just as long as I—

STEN: Yes, I did know that, your Honour.

HIS HONOUR: I thought you did, all right. Eyes wide open then, in other words.

STEN: Yes.” [17] (Emphasis added.)

17. Transcript 2, 16 February 2017, 1 – 3.

66. By this statement, his Honour was expressing the well-known principle that judges should exercise considerable caution when untested out-of-court statements of remorse are made to third parties and no evidence is given by the offender. [18] Notwithstanding this clear indication by his Honour, the applicant did not give evidence.

    18. Imbornone v R [2017] NSWCCA 144 at [57]; R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58] – [59].

67. The Crown case against the applicant was very strong and the judge was entitled on the question of remorse to give limited weight to the applicant’s actions after his arrest. The judge did not disregard the submission made on the applicant’s behalf, that he had not consumed alcohol since his arrest, but regarded that as not being sufficient. His Honour noted the repeated failure by the applicant to adequately address his long term alcohol issues and that no formal rehabilitation steps had been taken by him to address these issues in over nine months since his arrest.

68. It was open to the judge not to be satisfied on the balance of probabilities that there was not genuine remorse.

69. I would reject this ground.

Ground 4: That the overall sentence imposed was manifestly excessive

70. As it will be necessary to exercise the sentencing discretion afresh, it is unnecessary to decide this ground. As specific error has been identified, it is this Court’s duty to re-sentence “unless in the separate and independent exercise of its discretion it concludes that no different sentence be passed”. [19]

    19. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35].

Re-sentence?

71. I have earlier set out the facts surrounding the commission of the offence and the applicant’s subjective circumstances. No additional material was tendered by either party on re-sentence.

72. The maximum penalty for the offence is 10 years imprisonment with a standard non-parole period of 4 years. These legislative guideposts are to be borne in mind when considering the appropriate sentence, having regard to the objective seriousness of the offence and the applicant’s subjective case.

73. The judge’s assessment of the objective seriousness of the offence was above the mid-range of the offences of its kind (see [39] above). The applicant challenged this assessment on appeal as being excessive in the circumstances. Amongst the matters relied upon for this submission were that the applicant’s “impulsive acts were not against a random unknown victim”; the incident occurred outside the applicant’s home; a weapon was not used; the offence was not pre-meditated but motivated by a perceived need to act in a protective way towards his cousin; the contribution that his highly intoxicated state would have made to a momentary lapse of judgement; and the victim’s “overall good recovery from the brain injury”.

74. In my opinion these submissions are misconceived. This Court has emphasised the objective seriousness of drunken offenders striking victims without warning and the potential for a single hit to cause catastrophic injuries to the unsuspecting victim. [20] In the present case, the objective seriousness of the offence was enhanced as there was a degree of premeditation. Ms Vaega and the victim had agreed to leave but it was because of the applicant’s intervention that the victim did not do so. Having misled the victim by telling him that they needed to talk, the applicant hit him with considerable force in the mouth after they had walked a short distance. The applicant’s perceived need to act in a protective way towards Ms Vaega could neither justify this crime nor be a mitigating factor. Nor can the victim being known to the applicant and the assault occurring outside the applicant’s home be considered to diminish the seriousness of this crime. This was a serious act of unprovoked violence.

    20. See for example: Pattalis v R [2013] NSWCCA 171 at [23].

71. As a consequence of the applicant’s offending, the victim, who was 30 years old, sustained an extremely severe traumatic brain injury, which included extensive bleeding and contusions across his frontal and temporal lobes in addition to multiple skull fractures. Although he has made a good overall cognitive recovery, the continuing mild cognitive disabilities and reduced sense of smell and taste are likely to be permanent. The seriousness of these disabilities cannot be under-estimated for a relatively young man.

72. I agree with the judge’s assessment that the objective gravity of the offence is above mid-range.

73. The applicant’s criminal history does not entitle him to leniency but it is not such that it is a matter of aggravation. The discount of 25 per cent for the utilitarian value of the guilty plea has not been challenged and would be allowed on re-sentence.

74. The applicant argued that his plea of guilty was an indication of his remorse and contrition. However, the Crown case was very strong. His plea of guilty was, in my opinion, a recognition of the inevitable. The strength of the Crown case, I emphasise, is relevant only to the evaluation of remorse. [21]

    21. R v Sutton [2004] NSWCCA 225 at [12].

75. I am not persuaded on the balance of probabilities that the applicant is remorseful for his offending. Furthermore, I am unable to conclude on the balance of probabilities that he is unlikely to re-offend and has good prospects of rehabilitation. Much will depend on his ability to avoid alcohol abuse upon release.

76. I give weight to the need for specific deterrence. His Honour aptly recognised the need for general deterrence and denunciation for serious crimes of violence of this kind. [22]

    22. See for example: Pattalis v R [2013] NSWCCA 171 at [23]; R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31.

77. The comparative cases and sentencing statistics provided in the applicant’s written submissions do not demonstrate that the sentence imposed by the judge was manifestly excessive.

78. In the exercise of my own independent discretion, I have concluded that the sentence imposed by the judge, both in the head sentence of 4 years 6 months and the non-parole period of 3 years 4 months, is an appropriate reflection of the criminality involved in the applicant’s offending and his subjective circumstances. No lesser sentence is warranted in law and no different sentence is to be passed.

79. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Endnotes

Decision last updated: 20 April 2018