Brown v R

[2018] NSWCCA 257

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Brown v R [2018] NSWCCA 257
Hearing dates:	26 September 2018
Date of orders:	21 November 2018
Decision date:	21 November 2018
Before:	Payne JA at [1], Johnson J at [49], N Adams J at [99]
Decision:	(1)   Application for leave to appeal granted; (2)   Appeal allowed; (3)   Matter remitted to the District Court for re-sentence. (4)   Vary the order made in relation to the confidential affidavit on the file so that the sealed envelope may be opened by order of a judge of the District Court.
Catchwords:	SENTENCING — application for leave to appeal against sentence – Whether gross failure by applicant’s legal representatives properly to advise about evidence on sentence   SENTENCING – whether applicant denied opportunity to give evidence at sentencing hearing
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Crimes Act 1900 (NSW), s 112 Criminal Appeal Act 1912 (NSW), ss 5, 6, 12
Cases Cited:	Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Butters v R [2010] NSWCCA 1 Craig v R (2018) 92 ALJR 390; [2018] HCA 13 Hanna v R [2017] NSWCCA 168 Imbornone v R [2017] NSWCCA 144 Mun v R [2015] NSWCCA 234 Newman v R [2018] NSWCCA 208 Sankar v State of Trinidad and Tobago [1995] 1 WLR 194 R v Gray [1977] VR 225 R v Fernando (1992) 76 A Crim R 58 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353; R v Whyte (2004) 7 VR 397; [2004] VSCA 5 Raymond John Munro v Regina [2006] NSWCCA 350 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Tsiakas v R [2015] NSWCCA 187
Texts Cited:	Freiberg, “Fox and Freiberg’s Sentencing: State and Federal Law in Victoria”, Lawbook Co, 2014
Category:	Principal judgment
Parties:	Darren Brown (Applicant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Counsel: G Lewer (Applicant) B Hatfield (Respondent)   Solicitors: S Joyner (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/336785
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Crime Date of Decision: 10 June 2016 Before: Acting Judge Hosking SC File Number(s): 2014/336785

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Brown, the applicant, was sentenced in the District Court following a plea of guilty to 12 break, enter and steal offences contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). The applicant had entered Australia [redacted] using a false [redacted] passport for the purpose of committing break, enter and steal offences on behalf of a criminal syndicate [redacted] who funded his accommodation, food and car in Australia. The applicant used the phone book to target Chinese and Indian families based on their surnames, obtaining their addresses and telephone numbers. He would call the relevant landline number before he committed the offences to ensure the houses were empty, would use a crowbar or screwdriver to force entry, wore gloves so as to not leave fingerprints, and would often carry flowers so that if someone opened the door it would not be suspicious. When NSW Police executed a search warrant on the applicant’s rented premises, they found an “Aladdin’s Cave” of stolen jewellery and other property estimated to be worth around $394,000. The applicant had sent around $118,000 overseas in cash from selling other items of stolen property.

The sentencing judge found the offending to be “serious in the extreme” and assessed the applicant as having a high risk of reoffending. Allowing for a combined discount on sentence of 45 per cent for the applicant’s early plea of guilty and his assistance, his Honour sentenced the applicant to a total sentence of 7 years and 10 months, with a non-parole period of 5 years.

The sole ground of appeal was that there was a miscarriage of justice occasioned by the failure of the applicant’s counsel and solicitor at the sentencing hearing to (1) obtain instructions as to whether the applicant wished to give or call evidence, a failure which was exacerbated by the applicant’s lack of English language skills and hearing impairment and the fact that the applicant was not shown the pre-sentence report nor advised what he could do in response to it; (2) adduce evidence in the applicant’s case on sentence, namely not adducing character references or other evidence about his background; and (3) make submissions relevant to the applicant’s case on sentence, in particular about the applicant’s deprived childhood and the criminal hierarchy in which the applicant was entangled.

Payne JA (N Adams J agreeing) found:

The applicant’s representation on sentencing fell well below the standard expected of legal practitioners experienced in the criminal law. This would not have been a case of practical injustice however, even given those failings, but for the critical matter of the pre-sentence report and its discussion of the applicant’s attitude to offending, which informed the sentencing judge’s finding that the applicant was likely to reoffend: [41]-[42]

It was a gross failure not to call the applicant to give sworn evidence, as was his right. The applicant’s unsworn expressions of remorse were given little weight by the sentencing judge, but there was a possibility that sworn evidence may have affected the sentencing outcome: [43]-[45].

R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 applied.

A miscarriage of justice was occasioned by the conduct of the applicant’s legal representative in failing to call the applicant to give evidence. This was equivalent to a denial of procedural fairness. The sentencing court was “deprived of a consideration of an offender’s circumstances”: [47].

Raymond John Munro v Regina [2006] NSWCCA 350 applied.

N Adams J (Payne JA agreeing):

The requirement under s 21A(3)(i)(ii) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that an offender “provide” evidence of remorse does not mean an offender must themselves give evidence of remorse, and may provide evidence in the form of an affidavit from the offender or by statements to third parties. Such statements, however, are treated with caution by the courts. Although it is open to a sentencing judge to reject sworn evidence of remorse by an offender, there was a significant possibility that the conduct of the applicant’s legal representatives in not having the offender give evidence affected the outcome of the sentence in this matter and occasioned a miscarriage of justice: [110], [112].

Imbornone v R [2017] NSWCCA 144 applied.

Johnson J (dissenting) found:

The lack of diligence of legal representatives was not, of itself, a basis for the Court to intervene on sentencing. The question of whether a miscarriage of justice is established requires consideration of the facts and circumstances of the case, and whether there is a significant possibility that the asserted omissions of the applicant’s legal representatives affected the outcome on sentence. Something of real significance should be presented before this Court which is capable of affecting materially the outcome of the sentencing hearing. It is necessary to consider the evidence that would have been proffered by the applicant when considering whether a miscarriage of justice resulted: [51], [87]-[88].

Tsiakas v R [2015] NSWCCA 187 applied.

The applicant bears the onus of proof, on the balance of probabilities, to establish facts upon which he seeks to rely. The applicant has not established that the contents of the presentence report were not read to him at first instance. The applicant did not assert in his affidavit or oral evidence in the Court of Criminal Appeal that the contents of the presentence report were wrong nor did he deny saying the things attributed to him in that report: [67], [80]-[81].

In this case, any evidence of remorse which would have been given by the applicant would not have risen above a formulaic expression of regret, and would not be an expression of genuine remorse based on insight directed towards the victims and the broader Australian community: [94].

Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33; R v Whyte (2004) 7 VR 397; [2004] VSCA 5 applied.

Judgment

1. PAYNE JA: On 10 June 2016, Acting Judge Hosking SC in the District Court sentenced the applicant following a plea of guilty to 12 break, enter and steal offences contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). Each offence carries a maximum penalty of 14 years imprisonment. Two offences, possess housebreaking implements without lawful excuse and possess property reasonably suspected of being stolen, were taken into account on a Form 1.

2. His Honour imposed an aggregate term of imprisonment comprising a non-parole period of 5 years and an additional term of 2 years and 10 months. The total sentence was 7 years and 10 months. The applicant has been in custody since his arrest on 14 November 2014.

3. The applicant sought leave to appeal against the severity of the sentence imposed pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

4. The offences occurred between 7 September 2014 and 11 November 2014. The applicant, whose real name is [redacted], entered Australia using a false [redacted] passport in the name Darren Brown. He was accompanied by [redacted] who he described as his wife.

5. The applicant came to Australia for the specific purpose of committing break, enter and steal offences on behalf of a crime syndicate [redacted]. The applicant planned to send the proceeds of his crimes to the syndicate in exchange for being provided the false passport and money for travel, accommodation, food and a car.

6. In November 2014, the NSW Police executed a search warrant on the applicant’s rented premises in [redacted]. They discovered what the sentencing judge described as an “Aladdin’s Cave” of stolen property. This included jewellery and other valuable items of property estimated to be worth around $394,000. The applicant planned to sell the jewellery and send cash back to the syndicate [redacted]. In total, the applicant had already sent around $118,000 of the proceeds of crime overseas in cash.

7. The applicant, who does not speak English, says that he had a methodology for committing the break, enter and steal offences. He researched his victims’ names in the telephone directory, targeting popular Chinese or Indian names, and obtained their addresses and telephone numbers. He would call the relevant landline number before he committed the offences to ensure that the houses were empty. The applicant always used a crowbar or screwdriver to force entry, wore gloves so as not to leave fingerprints and would often carry flowers so that if someone opened the door it would not be suspicious.

8. The course of the sentencing hearing will be examined in a little more detail shortly, but it may be noted at the outset that the applicant did not give evidence during the sentencing hearing and no evidence was tendered by the applicant’s counsel at the sentencing hearing.

9. The offending was found by the sentencing judge to be “serious in the extreme” due to the careful planning, the targeting of victims based on their ethnicity, the ransacking of premises during the offences and the huge amount of property that was taken. The sentencing judge also regarded entering Australia on a false passport for the specific purpose of committing these crimes as “a feature of aggravation”. The sentencing judge therefore assessed the offences at the high end of the range of objective seriousness.

10. The sentencing judge found that he would be “surprised and indeed amazed if a professional criminal like [the applicant] had any remorse whatsoever”. When counsel for the applicant pointed out that the applicant had expressed remorse to the police in his record of interview, the sentencing judge said that they were no more than empty words.

11. The sentencing judge assessed the applicant as having a high risk of reoffending, given the professionalism of the crimes and the applicant’s attitude to the offences and the victims. His Honour assessed the applicant’s prospects for rehabilitation as poor.

12. The sentencing judge allowed a combined discount on sentence of 45 per cent for the applicant’s early plea of guilty and his assistance to the police. In reaching this figure, the sentencing judge had regard to a confidential affidavit of assistance tendered by the Crown. This Court has also viewed that affidavit. An order was made in this Court that the envelope in which the affidavit was sealed not be opened without a further order of this Court. I will return to that topic in addressing the orders that I propose.

13. The sentencing judge accepted the submission of counsel for the applicant that a finding of special circumstances should be made on the basis that the applicant will be incarcerated for a substantial period in Australia, speaking little or no English, and with no access to family and friends. The sentencing judge made a modest adjustment to the ratio of the non-parole period to the overall sentence as a result.

14. The sentencing judge stated that considerations of general deterrence were very important in this case. His Honour found that it was necessary for the Court to “send the message not only to the offender but to his criminal cohorts…that these kinds of offences will bring appropriately severe sentences”. The sentencing judge found that the applicant’s conduct was “a calculated attack on a targeted section of the Sydney community”.

15. The sentencing judge concluded that “if people think they can come to Australia and commit this sort of industrial scale crime because it is normal [redacted], I say it is not and never will be normal in New South Wales”.

Grounds of appeal

16. The sole ground of appeal relied on by the applicant provided as follows:

“1) A miscarriage of justice was occasioned by the failures by the applicant’s counsel and solicitor to:

a) Obtain instructions as to whether the applicant wished to give or call evidence;

b) Adduce evidence in the applicant’s case on sentence; and

c) Make submissions relevant to the applicant’s case on sentence.”

Applicant’s submissions

17. The applicant principally submitted that the sentencing proceedings miscarried because of the failure of the applicant’s legal representatives to obtain instructions as to whether the applicant wished to give or call evidence.

18. It was submitted that:

1. it was incumbent upon the applicant’s counsel to take instructions about the pre-sentence report tendered by the Crown, which contained a number of matters adverse to the applicant’s interests, which were accepted by the Court. The applicant’s case is that he was neither shown the pre-sentence report nor advised what he could do in response to it. The need to take instructions was acute in this case as the applicant had a very different cultural background, hearing impairment and lack of English skills;

2. there was a failure by the applicant’s counsel to advise the applicant about his right to give evidence in his case and take instructions as to whether he wished to do so. The decision to call evidence has been held to be a pivotal matter in a criminal trial and is a decision to be made by the accused: Sankar v State of Trinidad and Tobago [1995] 1 WLR 194; Craig v R (2018) 92 ALJR 390; [2018] HCA 13 at [25]-[27]. The decision to give or call evidence on behalf of an offender is a highly important part of a sentencing hearing, particularly where any unsworn statements by an offender are liable to be rejected or given little weight: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353;

3. the applicant’s legal representatives did not advise the applicant about additional evidence that could be obtained for sentence, such as a statement from his girlfriend, his family and friends [redacted], or other evidence about his background; and

4. the applicant’s legal representatives failed to make submissions on matters that were relevant to the exercise of the sentencing discretion, such as the reasons for the applicant’s offending, the existence of a criminal hierarchy and the applicant’s position at the bottom of that hierarchy and the trauma and deprivation in the applicant’s childhood (see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; R v Fernando (1992) 76 A Crim R 58).

19. Counsel for the applicant acknowledged that the applicant must demonstrate that the sentencing proceedings miscarried: Tsiakas v R [2015] NSWCCA 187 per Beech-Jones J (Leeming JA and Johnson J agreeing). The applicant submitted that, in this case, the failures by the applicant’s legal representatives rise to the level of miscarriage such that this Court should intervene.

20. The applicant submitted that the appeal should be allowed pursuant to s 6(3) of the Criminal Appeal Act and the matter remitted to the District Court for re-sentencing pursuant to s 12(2) of that Act.

Evidence on the appeal

The applicant’s evidence

21. The applicant’s affidavit sworn 9 March 2018 established the following matters. On 14 November 2014, he was arrested. One or two weeks after his arrest, he made an application for legal aid. On or around 18 December 2014, he was informed that his matter was assigned to Mr Phillip Wilkins.

22. In November or December 2015, Mr Wilkins sent him a copy of the brief of evidence in gaol which he could not read because it was in English, but he had some of his friends in gaol translate it for him. He never fully understood the contents of the brief.

23. On 6 June 2016, the day of his sentence hearing, he first met his barrister Mr Geoffrey Foster. They spoke for about 20 minutes in the cells before court started. Mr Wilkins and an interpreter were also present. The applicant told Mr Wilkins and Mr Foster that he wanted to give evidence on sentence to tell the Judge and the Court that he was sorry for what he had done. He was told that Mr Foster would do this on his behalf when he spoke. He was not told what the pre-sentence report was and was not informed about the content of any such report. He said that Mr Wilkins and Mr Foster did not ask him anything about his background, mental health or other personal circumstances, or whether he wished to get a psychological report on sentence. The applicant suffers from a hearing impediment and did not have his hearing aids during the sentence proceedings.

24. The applicant’s oral evidence given via a Spanish interpreter was to the same effect. The applicant told his legal representatives that he wanted to give evidence and Mr Foster said “Yes”, but then did not mention the subject further. The applicant reiterated that he wanted to give evidence and apologise for his actions.

The report of Mr Andrew Fordyce, Registered Psychologist, dated 29 November 2017

25. The applicant also tendered on this application a report of a psychologist, Mr Fordyce, who was not required for cross-examination. His report established the following. The applicant had a troubled childhood. He grew up in a poor and dangerous area [redacted] and his father was abusive to his mother and to him. He left school at the age of 13. The applicant expressed remorse for his offences and the impact that it had on his victims.

26. The applicant exhibited some symptoms of depression, but these were sub-clinical in severity. He used the rationale of stealing in order to support his family to justify his decision to engage with the antisocial peers who sent him to Australia. The applicant would benefit from individual psychological therapy although his limited English skills may make this difficult to facilitate.

Evidence of Mr Foster

27. Mr Foster was the barrister who appeared for the applicant at the sentencing hearing. Mr Foster’s affidavit, affirmed on the day of the hearing in this Court, 26 September 2018, stated that Mr Foster did not retain copies of documents, nor was he able to find any other notes about the matter. Mr Foster was unable to recall anything about what occurred in the conference with his solicitor Mr Wilkins and the applicant. Mr Foster stated in the affidavit that, had he been told that the applicant wanted to give evidence, the applicant would have done so, unless there was another reason not to. He did not recall the applicant asking to give evidence, nor being instructed by Mr Wilkins that the applicant wished to be called. Mr Foster stated that he believed he acted in accordance with instructions from the applicant and Mr Wilkins at the time of the hearing.

27. In oral evidence, Mr Foster could not remember whether he had asked the applicant about his background, mental health, reasons for offending or attitude towards the offending. Mr Foster could not remember whether or not he asked whether the applicant wanted to get a psychological or psychiatric report on sentence. Mr Foster could not remember whether or not he asked whether the applicant wanted to provide any written references from family or friends [redacted]. Mr Foster did not really remember the conference, although he vaguely recalled the applicant’s face. Mr Foster did not remember giving the applicant any advice about giving evidence at the sentencing hearing. He had instructions from Mr Wilkins in relation to the sentencing hearing but did not recall what they were. When the Court drew Mr Foster’s attention to the fact that he had asked that the matter be stood down, apparently for the purpose of seeking instructions about the presentence report, Mr Foster said that he was not sure whether in the transcript he was referring to seeking to locate the presentence report or to obtain instructions from his client.

Evidence of Mr Wilkins

29. Mr Wilkins was the solicitor for the applicant at the sentencing hearing. Mr Wilkins’ affidavit, affirmed 22 July 2018, established the following. He held a conference on 7 August 2015 with the applicant via AVL with a Spanish interpreter present. The applicant advised that he wanted to plead guilty and believed that if he pleaded guilty some of the charges would be dropped.

30. Mr Wilkins advised him that he doubted that this would occur, but would try. Mr Wilkins had a further conference via AVL on 1 September 2015 with an interpreter present; the applicant confirmed he wished to plead guilty and instructed that his wife was not involved in the offences.

31. On 17 November 2015 the police conducted an electronic record of interview with the applicant. The matter was listed for committal on 19 February 2016, on which date Mr Wilkins held a conference with the applicant in the cells with a Spanish interpreter present. During this, Mr Wilkins confirmed the applicant’s plea of guilty. The applicant was committed for sentence at the District Court on 26 February 2016; the sentence was fixed for hearing on 6 June 2016 and a pre-sentence report was ordered.

32. On 20 May 2016, Mr Wilkins forwarded an amended agreed statement of facts to the applicant and advised him that Mr Foster would be appearing as his barrister. The sentence hearing took place on 6 June 2016. There was a pre-sentence report. Mr Foster and Mr Wilkins conducted a conference with the applicant in the cells with a Spanish interpreter present and the interpreter took the applicant through the pre-sentence report. Mr Foster was of the view that the applicant should not give evidence and advised him of this. There was nothing in the pre-sentence report, nor was anything said by the applicant, that indicated to Mr Wilkins any need for a psychologist’s report.

33. Mr Wilkins made a number of significant concessions in cross-examination:

1. he was aware that the applicant had a hearing impairment but was not aware that he did not have his hearing aids during the sentence proceedings;

2. he only had one conference face to face with the applicant before the sentencing hearing, but accepted that it would have assisted to have a conference with a client prior to the day of the sentencing hearing for a variety of reasons;

3. he did not know what was in the presentence report. He did not seek confirmation from the applicant that the contents of the presentence report were true. When asked whether Mr Foster asked the applicant whether the presentence report was true or not Mr Wilkins said “I couldn’t put precise words into that”;

4. the statement in the pre-sentence report, that the applicant was not remorseful, was inconsistent with his instructions and what the applicant had told police in his interview;

5. he recalled that the applicant asked about whether he could give evidence and Mr Foster said that “you don’t need to”;

6. he was not sure whether the applicant was given specific advice about whether or not he was entitled to give evidence; and

7. he did not give the applicant advice that he could tender material on sentence.

Crown submissions

34. The Crown submitted that, assuming the applicant’s evidence was accepted, the appeal should nevertheless fail. This was because the applicant had failed to demonstrate that any of the matters complained of were so significant as to amount to a miscarriage of justice. The Crown submitted that the applicant had not identified a basis for objecting to the pre-sentencing report.

35. The Crown further submitted that even if the applicant had given sworn evidence about remorse, it was unlikely that he would have benefitted as his evidence would have been regarded as “empty” and been given little weight by the sentencing judge. The Crown submitted that, while the applicant submitted that he was in the best position to give evidence about a range of matters including his background, reasons for offending and remorse, no matters of significance within these categories or otherwise were identified in the additional evidence, including the applicant’s affidavit.

36. The Crown submitted that the psychologist’s report tendered does not identify any causal links between the applicant’s psychological assessment and the offending, nor would any evidence regarding the applicant’s deprived background, taken at its highest, mitigate the offending to any substantial degree in circumstances where the applicant came to Australia for the purposes of committing these crimes.

37. The Crown submitted that, within the list of factors the applicant contended submissions were not made about, several of the factors were taken into account by the sentencing judge (such as totality, special circumstances, etc.) and it is therefore difficult to see how this could give rise to a miscarriage of justice.

Legal test to be applied

38. The legal test to be applied in this case is explained in some detail in Tsiakas v R [2015] NSWCCA 187 by Beech-Jones J (with whom Leeming JA and Johnson J agreed). What his Honour said about the test bears close analysis:

“[42] In some circumstances the incompetence of Counsel acting for an accused person at a trial may be of such a kind that it gives rise to a miscarriage of justice justifying intervention by this Court. In such cases what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd v R [2006] HCA 9, 80 ALJR 614 at [24] per Gummow and Hayne JJ; “Nudd”; TKWJ v R [2002] HCA 46; 212 CLR 124 TKWJ at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J; “TKJW”).

[43] The demonstration of a “miscarriage of justice” is the third basis for setting aside a conviction referred to in s 6(1) of the Criminal Appeal Act 1912. Even though it is not a statutory basis for interfering with the exercise of a sentencing discretion, a number of decisions of this Court have adopted that test and the associated discussion in Nudd and the other cases on the same topic as applicable to applications for leave to appeal from sentence (eg Raymond John Munro v Regina [2006] NSWCCA 350 at [24] to [25] per Beazley JA with Sully and Hislop JJ agreeing; Puan v R [2009] NSWCCA 194 at [28] per Howie J, with whom Hodgson JA and Fullerton J agreed, and [54] and [55] per Fullerton J; Garland v R [2009] NSWCCA 217 at [26] per McCallum J, with whom McClellan CJ at CL and Howie J agreed). In effect, these decisions appear to treat a conclusion that a miscarriage of justice of this kind was occasioned by the conduct of an offender’s legal representative as equivalent to a finding that there was a denial of procedural fairness. The affording of procedural fairness is an “immutable characteristic” of a court, including a court exercising a discretion to impose a sentence (Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [194] per Gageler J). The establishment of a breach of procedural fairness in the course of sentencing proceedings is a basis for interfering with the exercise of the power to impose a sentence.

[44] With both appeals against conviction and sentences, it is not sufficient to warrant intervention to simply point to some failing, even a gross failing, of the legal representative who appeared during the sentence proceedings. In conviction appeals, where incompetence to the relevant standard is demonstrated, the Court considers whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24]). In sentence appeals an analogous principle applies. Thus this Court has considered whether “compelling material was available but not tendered, or its significance not appreciated” (Pym v R [2014] NSWCCA 182 at [75] per Fullerton J, with Hoeben CJ at CL and Price J agreeing; “Pym”), whether material of “significance” was not presented (R v Abbott (1985) 17 A Crim R 355, 356 per Street CJ) or whether the sentencing court was deprived of a consideration of an offender’s circumstances (Munro at [25] per Beazley JA). However, it has also been said that “it will be a very rare case” that a miscarriage of justice will have occurred “simply because of a defect in submissions made to a sentencing judge by defence counsel” (Puan at [55] per Howie J). Again these observations reflect the approach adopted with complaints of a denial of procedural fairness namely that “[f]airness is not an abstract concept. [it] is essentially practical” and that “the concern of the law is to avoid practical injustice” (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ).

[45] The application of these principles is illustrated by the facts in Pym in which Counsel for the offender failed to tender a number of reports from a psychiatrist the last of which stated that he committed the offences in an “altered state of consciousness” (Pym at [9]). At the hearing of the application for leave to appeal in this Court the Crown tendered reports from its own psychiatrist which expressed a different opinion (Pym at [11]). The Court did not determine the “question of the weight that might have [ultimately] been attributed by the sentencing judge to the unpresented psychiatric material” (Pym at [76]) but was nevertheless satisfied that the further material was of such substance that it warranted the conclusion that the sentencing court had proceeded “on the basis of incomplete information” (Pym at [84]). The proceedings were remitted to the District Court for a “fresh sentence proceeding” (Pym at [85]).”

39. Most relevant to the present case, which is sentence appeal, is his Honour’s conclusion that the test is whether there is a significant possibility that the acts or omissions about which complaint is made affected the outcome of the sentence. The complaint here is that by reason of the conduct of the applicant’s representatives, the sentencing court was “deprived of a consideration of an offender’s circumstances”. As Beech-Jones J makes clear in Tsiakas, a miscarriage of justice of this kind occasioned by the conduct of an offender’s legal representative is equivalent to a finding that there was a denial of procedural fairness. It remains clear, of course, that as Gleeson CJ pointed out in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, fairness is not an abstract concept and the concern of the law is to avoid practical injustice. For that reason, no miscarriage will be shown simply because of a defect in submissions made to a sentencing judge by defence counsel.

Findings on the evidence in this Court

40. I am conscious of the difficulties attending the process of receiving and considering evidence of the kind here engaged as explained by Basten JA in Hanna v R [2017] NSWCCA 168 at [11]-[18]. This is not a case, however, where there is a contest about whether the conduct of the applicant’s legal representatives is capable of rational explanation on forensic grounds. I make the following findings about the evidence in this Court:

1. Mr Wilkins sent the applicant a copy of the brief of evidence in gaol which the applicant could not read. It was translated for him by other inmates but he never fully understood the contents of the brief.

2. during the conferences with Mr Wilkins before and at the time of the committal, no meaningful advice was given to the applicant about the sentencing proceedings;

3. the only conference of substance about the sentence hearing with any legal advisor took place on 6 June 2016, the day of his sentence hearing, when the applicant first met his barrister Mr Foster. The applicant spoke with his representatives for about 20 minutes in the cells. The applicant told Mr Wilkins and Mr Foster that he wanted to give evidence on sentence and to tell the Judge and the Court that he was sorry for what he had done. The applicant was not asked to and did not give instructions that he agreed not to give evidence. The applicant was never advised that he had a right to give evidence if he so chose, although I accept Mr Wilkins’ evidence that Mr Foster said that the applicant did not need to give evidence;

4. I am unable to accept Mr Wilkins’ affidavit evidence that the interpreter took the applicant through the pre-sentence report. If that had taken place the inconsistency between the report and the applicant’s instructions would have been clear and obvious. In any event, Mr Wilkins accepts that he did not seek confirmation from the applicant that the contents of the presentence report were true. I am conscious that Mr Foster is recorded at the commencement of the transcript as stating that he would like the opportunity of obtaining instructions about a few matters, “including of course the pre-sentence report”, but as I have said, even when the Court drew this to Mr Foster’s attention he said that it was equally likely that this reference was to him obtaining a copy of the pre-sentence report. From the transcript it is clear that no submission was ultimately made about the report, although the sentencing judge apparently refers to it and says “I am not surprised … it is said he has no remorse”. If Mr Wilkins and Mr Foster had addressed the content of the pre-sentence report with the applicant it would have been obvious that the report was inconsistent in a material respect with their instructions and steps would need to be taken to address this issue. There is no evidence in the record that any such steps were taken;

5. Mr Wilkins and Mr Foster did not ask the applicant anything about his background, mental health or other personal circumstances, or whether he wished to get a psychological report on sentence. If any of those things had happened they would be reflected in the record. They are not.

Application

41. In the present case, the applicant’s representation on his sentencing fell below the standard expected of legal practitioners experienced in the criminal law. Nevertheless, I would not have concluded that this was a case in which there was any practical injustice, save that the applicant was not asked to and did not give instructions that he agreed not to give evidence and the applicant was never advised that he had a right to give evidence if he so chose. This failing must be considered in the context of the pre-sentence report which addressed the applicant’s lack of remorse which was a critical issue in the sentencing proceedings. That report stated:

“Attitude to offending

Mr Brown appeared to have little insight into his offending. He appeared to believe that his family’s financial situation excused his behaviour and did not express remorse for his actions nor for the victims”.

42. It will be recalled that the applicant does not speak English. His representatives on sentence led no evidence about the circumstances in which the pre-sentence report was prepared, what the offender was asked and what the Community Corrections Officer was told by the interpreter apparently present, who was not called. What the applicant’s representatives on sentence did know, or at least should have known, was that the applicant wished to give sworn evidence about his remorse. Their failure to take proper instructions from the applicant and to allow him to give evidence as he wished gave rise to a significant possibility that the outcome of the sentence was affected. This is not a case where the conduct of the applicant’s representatives in failing to call the applicant is capable of rational explanation on forensic grounds. Neither Mr Foster nor Mr Wilkins suggested that a forensic decision was made about this issue.

43. The failure by the applicant’s representatives to call the applicant to give sworn evidence, as he wished to do and as was his right, is properly described as a gross failure. I am unable to conclude that the failure by the applicant’s legal representatives on sentence made no material difference. Whilst it is true that the sentencing judge was dismissive of the unsworn expressions of remorse given by the applicant in his record of interview, it is another thing altogether to conclude that there is no “significant possibility” that sworn evidence by the offender would have made a difference to the sentence.

44. This Court has regularly stated that unsworn statements by an offender are liable to be rejected or given little weight: see R v Qutami and recent application of that principle in Newman v R [2018] NSWCCA 208. It is true that the converse may not be true and that a sworn statement by an offender will not necessarily be given weight.

45. In this case, however, in the face of a pre-sentence report that said, in terms that an offender who spoke no English “did not express his remorse for his actions nor for the victims”, the applicant’s legal representatives were required to permit the applicant, if he wished, to give evidence about the circumstances in which that report was prepared and about the true nature of the applicant’s remorse.

46. The applicant told Mr Wilkins and Mr Foster that he wanted to give evidence about his remorse. The applicant was not asked to and did not give instructions that he agreed not to give evidence. A miscarriage of justice was occasioned by the conduct of the applicant’s legal representatives in failing to call the applicant to give evidence which was equivalent to a denial of procedural fairness. The sentencing court was “deprived of a consideration of an offender’s circumstances”, to paraphrase Beazley P in Raymond John Munro v Regina [2006] NSWCCA 350. The sole ground of appeal has been made out.

47. Since writing this judgment I have had the benefit of reading the decision of Adams J. I agree with the additional reasons of her Honour. The undoubted seriousness of the applicant’s offending should not deprive him of an opportunity properly to advance his case on sentence.

Proposed order

48. The applicant did not submit that this Court was in a positon to re-sentence the applicant. I propose the following orders:

1. Application for leave to appeal granted;

2. Appeal allowed;

3. Matter remitted to the District Court for re-sentence.

4. Vary the order made in relation to the confidential affidavit on the file so that the sealed envelope may be opened by order of a judge of the District Court.

49. JOHNSON J: I have had the advantage of considering, in draft, the judgments of Payne JA and N Adams J. I have come to a different view concerning the outcome of this application for leave to appeal against sentence.

The Sole Ground of Appeal

50. The Applicant relies upon a single ground of appeal which asserts that a miscarriage of justice was occasioned by the failures of his counsel and solicitor to:

1. obtain instructions as to whether the Applicant wished to give or call evidence;

2. adduce evidence in the Applicant’s case on sentence; and

3. make submissions relevant to the Applicant’s case on sentence.

51. The question whether a miscarriage of justice is established requires consideration of the facts and circumstances of the case. The question is whether there is a significant possibility that the asserted omissions of the Applicant’s legal representatives affected the outcome on sentence: Tsiakas v R [2015] NSWCCA 187 at [42]-[44]. Something of real significance should be presented before this Court which is capable of affecting materially the outcome of the sentencing hearing: Tsiakas v R at [67]. It is for the Applicant to demonstrate that practical injustice has resulted: Tsiakas v R at [44].

The Issue of Remorse

52. Before moving to factual issues, I observe that Payne JA and N Adams J have expressed particular concern with respect to the failure to call the Applicant to give evidence of his remorse at the sentencing hearing. As N Adams J has noted, s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999 provides for an offender’s remorse to be taken into account as a mitigating factor on sentence, but only if the offender has accepted responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

53. In a sentencing context, remorse means regret for the wrongdoing which the offender’s actions has caused, because it can be safely assumed that an offender will always regret the fact that he or she has been apprehended: Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at 313 [44].

54. In R v Whyte (2004) 7 VR 397; [2004] VSCA 5, Winneke P (Bongiorno and O’Bryan AJJA agreeing) observed at (403 [21]) that it is rare to find convincing evidence of genuine remorse and that remorse is an elusive concept which is not to be confused with emotions such as self-pity. It has been said that remorse is not a matter that directly affects the culpability of an offender, but is regarded as a relevant sentencing consideration because it forms part of the rehabilitative or reformative component of the sentence: R v Gray [1977] VR 225 at 231; Freiberg, “Fox and Freiberg’s Sentencing: State and Federal Law in Victoria”, Lawbook Co, 2014, paragraph [6.95].

The Applicant’s Offences

55. An Agreed Statement of Facts was tendered at the sentencing hearing. In his affidavit sworn 9 March 2018 (paragraph 13), the Applicant said that he had received a copy of the Statement of Agreed Facts from his solicitor and that he had asked friends in gaol who could speak Spanish and English to translate the document for him. The Applicant signed the Statement of Agreed Facts and sent the document back to his solicitor.

56. Accordingly, the Applicant was aware of the factual basis upon which he was to be sentenced for these offences. The evidence before this Court does not seek to challenge any of the facts of the Applicant’s offences, nor contend that there is any dispute concerning the facts placed before the sentencing Judge.

57. As Payne JA has stated, the Applicant was sentenced for 12 offences of break, enter and steal contrary to s.112(1)(a) Crimes Act 1900, for which the maximum penalty for each offence is imprisonment for 14 years. In addition, offences of possession of housebreaking implements and goods in custody were taken into account on sentence on a Form 1.

58. The Applicant was aged [redacted] years old at the time of the offences committed in a period between 7 September 2014 and 10 November 2014. The Applicant had come to Australia in July 2014, travelling on a false passport, for the purpose of carrying out a series of break, enter and steal offences on behalf of a crime syndicate [redacted].

59. It appears from the Agreed Statement of Facts that what brought the Applicant to the attention of police were the observations of an alert citizen who noted the registration number of a motor vehicle involved in the commission of one of the offences. That vehicle was linked to the Applicant and the premises where he was residing at the time in [redacted].

60. The sentencing Judge said the following with respect to the offences, in a passage which did not come under challenge in this Court (ROS6-7):

“The offender told police that he found the houses of his victim’s by searching through the White Pages and that he would do some research, as a skilled professional like the offender would, and would cross some out, ‘that were not good because either they had an alarm system, they were not Asian people or the house was not alone’. He said he would use a crowbar or screwdriver to force entry and would always wear gloves not to leave fingerprints. He said that he would regularly call potential victims premises on his mobile phone before breaking in in order to ensure that no one was home. He obtained the telephone numbers and addresses from the White Pages and he would search for popular Chinese or Indian names. He said that he would often carry flowers so that if somebody opened the door it would not be suspicious, a piece of cynicism in my opinion that almost takes one’s breath away.

He sold the jewellery and would send the cash back [redacted]. He admitted that a 16 kilogram parcel that contained stolen bags was sent back to [redacted], I think very soon before, I think on the very day that the police executed the search warrant. He was asked about a number of offences but said that in many cases he could not recall the particular offence, no doubt because there were so many.

In terms of the objective seriousness of these matters they were self-evidently serious in the extreme. They were carefully planned, victims were targeted because of their ethnicity, a huge amount of property was taken and as I mentioned for good measure that I regard this as feature of aggravation, the offender entered Australia on a false passport for the specific purpose of committing these very types of crime. Much of the property has never been recovered. As I mentioned many of the victims had their premises ransacked. I assess the objective seriousness of these matters at the high end of the range as the Crown submitted.”

61. During the execution of the search warrant at the Applicant’s [redacted] premises on 14 November 2014, police located, amongst other things, a number of pieces of paper with addresses and phone numbers listed together with eight mobile phones, two of which had been used to call the victims’ homes as part of the modus operandi of the offending. In addition, police found in the Applicant’s possession a torch, a pair of gloves, a crowbar and a screwdriver.

62. It may be seen that these were professional break, enter and steal offences committed by the Applicant who possessed considerable skills in that regard, taking care not to leave fingerprints or DNA at the scenes of the crimes. The sentencing Judge observed that the offences constituted, in reality, “nothing less than a calculated attack on a targeted section of the Sydney community” (ROS9).

Other Evidence Before the Court

63. Also before the sentencing Court was a confidential affidavit with respect to the Applicant’s assistance to authorities and a presentence report which had been requested by the Applicant’s solicitor (Applicant’s affidavit, 9 March 2018, paragraph 17; PA Wilkins affidavit, 22 July 2018, paragraph 8).

Discounts and the Aggregate Sentence

64. His Honour allowed a combined discount of 45% for the Applicant’s pleas of guilty and his assistance to the authorities for the purpose of ss.22 and 23 Crimes (Sentencing Procedure) Act 1999.

65. The sentencing Judge nominated indicative sentences for each of the 12 offences, and then imposed an aggregate sentence of imprisonment for seven years and 10 months commencing on 14 November 2014 and expiring on 13 September 2022, with a non-parole period of five years expiring on 13 November 2019.

Evidence Before this Court

66. Each of the Applicant, his former counsel (Mr Foster) and former solicitor (Mr Wilkins) gave evidence in this Court.

67. To the extent that there are contested factual issues to be determined by this Court on the application, the Applicant bears the onus of proof, on the balance of probabilities, to establish facts upon which he seeks to rely.

68. What follows are my findings with respect to factual issues having regard to the documentary and oral evidence and, to the extent that it is relevant, the demeanour of witnesses.

69. I am satisfied that the Applicant was aware of the factual basis upon which he was to be sentenced as the Statement of Agreed Facts had been translated to him by fellow inmates in custody, and the Applicant had signed the document before returning it to his solicitor (Applicant’s affidavit, 9 March 2018, paragraph 13). Although the means of translation utilised in this respect may not have been ideal, the Applicant was aware of the facts of the offences to be placed before the sentencing Court. In this Court, no argument to the contrary was advanced.

70. In considering any factual dispute concerning what occurred at the sentencing hearing on 6 June 2016, it is appropriate to keep in mind that the hearing in this Court took place on 26 September 2018 as a result of a Notice of Application for Leave to Appeal filed on 15 May 2018. That said, the affidavit evidence reveals that efforts had been made on behalf of the Applicant’s present legal representatives to contact his former barrister and solicitor since May 2017.

71. In making findings of fact, in particular where witnesses asserted a lack of recollection of particular events, it is useful to consider the contemporaneous documentary material.

72. At the commencement of the hearing on 6 June 2016, Mr Foster noted that a presentence report was available and that he wished to see it and “would like the opportunity of seeking instructions about a couple of matters, including of course the presentence report” (T2, 6 June 2016). In response to an enquiry from the Bench as to whether there would be oral evidence, Mr Foster replied in the negative (T1, 6 June 2016). His Honour stood the matter down until not before 2.00 pm that day.

73. It is common ground that Mr Foster and Mr Wilkins conferred thereafter with the Applicant in the cell area in the presence of a Spanish interpreter. I infer that the legal representatives possessed a copy of the presentence report dated 1 June 2016 prepared by Christine Moellner, Community Corrections Officer.

74. The Applicant states that he was not told what the presentence report was and that he was never shown a copy of the report (Applicant’s affidavit, 9 March 2018, paragraph 17). The Applicant told this Court that he did not remember if the interpreter had read any of the presentence report to him before the hearing (T5, 26 September 2018).

75. The evidence of Mr Foster did not shed any light upon this issue given his apparent lack of recollection with respect to the conference. Mr Wilkins stated that the Applicant had been taken through the presentence report by the interpreter (PA Wilkins’ affidavit, 22 July 2018, paragraph 11).

76. The presentence report of Ms Moellner indicated that she had interviewed the Applicant with the assistance of a Spanish interpreter. The source of the matters contained in the presentence report was the Applicant himself together with perusal by Ms Moellner of the police facts and criminal history and Corrective Services NSW records. The presentence report set out the Applicant’s history and background, including his family and social circumstances [redacted]. Reference was made as well to his education and employment. With respect to the Applicant’s offences, Ms Moellner stated in the presentence report:

“Financial

The offender stated that he decided to come to Australia as he was promised that he would be able to send money home to his family who were experiencing severe financial hardship. He stated that if he was able to financially support his family his two brothers would be able to continue with their education.

Attitude to offending

Mr Brown appeared to have little insight into his offending. He appeared to believe that his family’s financial situation excused his behaviour and did not express remorse for his actions nor for the victims.”

77. Ms Moellner referred to the Applicant’s statement that he suffered from hearing loss and used hearing aids to assist with his disability. Ms Moellner concluded the report with the following assessment:

“Mr Brown’s perception of his offending appears to originate from a very different cultural and economic background to our own. He describes a disadvantaged and unsafe environment in his home country which elucidates his decision to come to Australia on the promise of making money and an easier lifestyle. His admission that he knew that he was to commit crime in Australia to repay his debt to his minders is concerning, however this is also somewhat explained by his description of his earlier life.”

78. It was not submitted in this Court that the contents of the presentence report were controversial, except for the part concerning the Applicant’s lack of remorse. The parts of the report which contained the Applicant’s personal history and background, and an explanation of his motivation for committing the offences, appear to be largely consistent with the report dated 29 November 2017 of Mr Andrew Fordyce, psychologist, relied upon by the Applicant in this Court.

79. Accordingly, pertinent subjective material concerning the Applicant was to be placed before the sentencing Court by way of the presentence report.

80. In circumstances where a purpose of the conference (according to the transcript of 6 June 2016) was to take instructions from the Applicant concerning the presentence report, I am satisfied that the presentence report was read to the Applicant by the interpreter. In my view, the Applicant has not demonstrated that this did not occur. In reaching this conclusion, I have considered the finding made by Payne JA (at [40](4) above). The presentence report could be regarded as being generally helpful to the Applicant’s case. I do not agree with the finding of Payne JA that the contents of the report support a finding that it was not read to the Applicant. The reference to remorse was brief and needed to be read in context.

81. I note, as well, that the Applicant did not assert in this Court, in his affidavit or oral evidence, that the contents of the presentence report were wrong. He did not deny saying the things attributed to him in the presentence report referred to at [76] above. In circumstances where the Applicant bears the onus of proof, this aspect is significant.

82. I accept that there was some discussion during the conference on 6 June 2016 concerning the question whether the Applicant would give evidence at the sentencing hearing. The evidence on this issue involves the account of the Applicant and the somewhat unsatisfactory evidence of Mr Foster and Mr Wilkins which involves a combination of lack of recollection or uncertainty on this aspect. I accept that the Applicant was advised that the better course was not to give evidence at the sentencing hearing.

83. Although the Applicant was not called to give evidence in the District Court, his counsel did refer, in the course of submissions, to an apology expressed by the Applicant to investigating police in the course of an interview following his arrest (T5-6, 6 June 2016):

“FOSTER: I can indicate to your Honour that in answer to a question, your Honour, he said this. “I only, I want to apologise to all those people and that’s why I’m here in gaol”. There was an early indication of contrition.

HIS HONOUR: Well, he uttered some words, Mr Foster. He uttered a few words of contrition. I’ll think about that. They’re very easy words to say, aren’t they? Just what he thinks the judge would like to hear. I’ll think about that.

FOSTER: Your Honour, of course, before you is an affidavit.

HIS HONOUR: Indeed, just at the risk of repeating myself Mr Foster, just to return to what I have put to you a moment ago, my view at the moment is that any expression of remorse once arrested by the police rings pretty hollow in the mouth of a man who has come into the country on a false passport deliberately to steal on an industrial scale. I don’t think that’s worth much quite frankly.”

84. The response of the experienced sentencing Judge to submissions made by reference to remorse provided a practical barometer with respect to this issue in the context of this case. It cannot be said that counsel for the Applicant at first instance did not advance an argument concerning remorse. However, he did not elect to call his client to give evidence on this matter at the sentencing hearing.

What Evidence Would the Applicant Have Given?

85. What was the evidence which the Applicant would have given if he was called at the sentencing hearing? What is the lost opportunity complained of in this case? In this Court, the Applicant was asked in cross-examination by the Crown (T6.15, 26 September 2018):

“Q. What were the things you wanted to speak about in Court?

A. INTERPRETER: I wanted to apologise for this country, I wanted to apologise for the people in this country whom I damaged or did wrong. I was very regretful. I was in gaol and I didn’t want that and that’s the only thing I wanted to tell the Court.”

Has the Applicant Established a Miscarriage of Justice in this Case?

86. The Crown acknowledged in this Court that the legal representation of the Applicant in the District Court “fell short to some extent of what would be expected by the court” and that his legal representatives “couldn’t be described as overly diligent in their approach” (T25, 26 September 2018). These submissions were apt. What occurred in this case will not serve as an example to legal practitioners as to how to conduct sentencing proceedings.

87. However, the lack of diligence of defence legal representatives is not, of itself, a basis for this Court to intervene on sentence.

88. It may be taken to be an important part of sentencing proceedings that an offender be given the opportunity to give evidence on matters relevant to sentence if he or she wishes to do so. In deciding whether a miscarriage of justice has resulted because of an offender not giving evidence (despite a wish to do so), it is necessary to have regard to the evidence which would have been proffered considered against the background of the sentencing hearing more generally.

89. It must be kept in mind that the Applicant was, in truth, a professional burglar who had travelled to Australia on a false passport as part of an organised criminal enterprise, for the purpose of carrying out targeted burglaries on high-value victims in the city of Sydney. He did so, to considerable effect, for a period of two months before his arrest in November 2014. He displayed a systematic and careful approach to the offending, with the proceeds of a number of the crimes already having been sent back to [redacted]. This was a planned and protracted criminal enterprise which would have continued unless and until the Applicant was arrested. His arrest occurred as a result of the fortuitous sighting by a citizen of a motor vehicle, which could be linked to the Applicant, at the scene of one of the crimes.

90. The objective gravity of the Applicant’s offences was such that a very substantial sentence of imprisonment was inevitable in his case. That sentence was reduced to a significant extent as a result of a combined 45% discount to reflect the utilitarian value of his pleas of guilty and also his assistance to authorities. The Applicant’s subjective circumstances were placed before the sentencing Court by way of the presentence report, the contents of which (in this respect) were not challenged on this application.

91. This Court has made clear that a claim of remorse is best advanced by an offender giving evidence before the sentencing Court to allow an assessment to be made of its genuineness and value: Mun v R [2015] NSWCCA 234 at [39].

86. The fact that an offender did not have an opportunity to give evidence of remorse, because of the approach of the person’s legal representatives, has the capacity to be a significant issue in a given case. That said, the sentencing Judge had a range of evidence before him and a submission was made by the Applicant’s counsel that he had apologised to his victims in the course of a police interview. The submission advanced by his counsel reflected what the Applicant would have said if he had given evidence of these matters (see [85] above).

87. It is true that the Court did not have an opportunity to assess the Applicant as a witness in his claim of remorse. However, it is necessary to keep in mind the context in which this issue arose for consideration. The Applicant, as a skilled and professional burglar operating in Australia as part of an organised crime syndicate, had been captured by police and charged after a successful period (over two months) stealing valuable property from residential premises.

88. Properly understood, any evidence of remorse which the Applicant would have given would not have risen above an almost formulaic expression of regret for the offences expressed only after capture. Such evidence would have the flavour of regret that he had been caught rather than an expression of genuine remorse, based on insight, directed towards the victims and the broader Australian community (see [53]-[54] above). I keep in mind, as well, that the Applicant received a substantial discount for his assistance to authorities.

89. I do not consider that anything else contained in the report of Mr Fordyce provides assistance to the Applicant. Nor do I consider that the suggestion of further arguments which could have been put on behalf of the Applicant at the sentencing hearing advances the matter. It will be a very rare case that a miscarriage of justice will have occurred simply because of a defect in submissions made to a sentencing Judge by defence counsel: Tsiakas v R at [44].

90. I am not persuaded that the Applicant has demonstrated something of real significance which (if called at first instance) was capable of materially affecting the outcome of the sentencing hearing: Tsiakas v R at [67].

91. The Applicant has not demonstrated that a miscarriage of justice occurred in this case.

92. I would grant the Applicant leave to appeal, but would dismiss the appeal against sentence.

93. N ADAMS J: I have had the advantage of reading the judgment of Payne JA in draft. I respectfully agree with his Honour’s reasons and the orders that he proposes but I wish to provide some additional reasons for doing so.

94. The determination of this application for leave to appeal against sentence involved making findings of fact based on contested evidence. The applicant, his then solicitor and his then barrister all gave evidence in this court. I have made my own assessment of that evidence and arrived at the same factual findings as Payne JA. In particular I am satisfied that the applicant’s legal representatives did not obtain instructions from the applicant as to whether he wished to give or call evidence nor take any specific instructions about the contents of the Pre-Sentence Report (“PSR”) insofar as it contained matters contrary to the applicant’s instructions.

95. It was common ground at the proceedings on sentence that the applicant had voluntarily participated in a record of interview three days after he was arrested in which he made full and detailed admissions. Although that interview was not before the sentencing judge, it was referred to in the agreed statement of facts. The applicant pleaded guilty in the Local Court and subsequently provided assistance to the authorities such that he received a 45% discount on sentence for his combined early plea and assistance. It is in that context that the applicant’s counsel and solicitor were provided with the PSR on the day of the proceedings on sentence and prior to counsel meeting the applicant for the first time that day.

96. The PSR contained the following comments as to the applicant’s remorse under a heading “Attitude to offending”:

“[the applicant] appeared to have little insight into his offending. He appeared to believe that his family’s financial situation excused his behaviour and did not express remorse for his actions nor for the victims”

103. And later under the heading “Assessment and community-based sentencing options”:

“[The applicant’s] perception of his offending appears to originate from a very different cultural and economic background to our own. He describes a disadvantaged and unsafe environment in his home country which elucidates his decision to come to Australia on the promise of making money and an easier lifestyle. His admission that he knew that he was to commit crime in Australia to repay his debt to his minders is concerning however this is also somewhat explained by his description of his earlier life”.

104. It ought to have been apparent to the applicant’s legal representatives that these unfavourable comments in the PSR were inconsistent with other available evidence regarding the applicant’s remorse. Despite this, there is no evidence before this Court that the applicant’s solicitor or barrister asked the applicant about what he had told the author of the PSR nor gave any consideration to the need to speak to him the about what was contained in the PSR. The applicant was not asked to and did not give instructions that he agreed not to give evidence. The applicant did not speak English, had a hearing problem and did not have his hearing aid at court.

105. It is to be accepted that legal representatives will often have to make a difficult decision as to whether to call an offender to give evidence at his or her proceedings on sentence. A forensic opinion may be arrived at that an offender may not convey any genuine contrition in his or her sworn evidence and advice will be given to the offender accordingly. A decision will then be made consistent with instructions. But that is not what happened in this case. In this case there is no evidence that, given the contents of the PSR, the applicant’s legal representatives made any forensic decision at all as to whether the applicant should give evidence in circumstances where he wanted to do so.

106. Following the failure by the applicant’s legal representatives to even consider the applicant’s desire to give evidence at his proceedings on sentence, the sentencing judge raised the question of remorse during submissions on sentence as follows (the transcript reflects that there was a fault in the recording equipment and that upon resumption the following is recorded on the transcript):

HIS HONOUR:   …. I’m not surprised he has no - it is said that he has no remorse, Mr Foster, because as I understand the facts, having done this sort of thing in other countries he entered Australia on a forged passport for the specific purpose of doing exactly what he did so in those circumstances one would not expect the great deal of remorse, would one?

FOSTER:      No

HIS HONOUR:   He got caught and there you have it.

FOSTER:   I accept what your Honour says on that however I just wish to draw your Honour’s attention to the record of interview questions -

HIS HONOUR:   I don’t have a record of interview.

FOSTER:   I can indicate to your Honour that in answer to a question, your Honour, he said this. “I only, I want to apologise to all those people and that’s why I’m here in jail”. There was an early indication of contrition

HIS HONOUR:   Well, he uttered some words, Mr Foster. He uttered a few words of contrition. Think about that. They’re very easy words to say aren’t they? Just what he thinks the judge would like to hear. I’ll think about that

FOSTER:   Your Honour, of course, before you as an affidavit.….[of assistance]

HIS HONOUR:   Indeed, just at the risk of repeating myself Mr Foster, just to return to what I have put you a moment ago, my view at the moment is that any expression of remorse once arrested by the police rings pretty hollow in the mouth of a man who is coming to this country on a false passport deliberately to steal on an industrial scale. I don’t think that’s worth much quite frankly”

107. After his Honour gave this indication, the applicant’s counsel did not address the question of remorse any further and moved on to the question of special circumstances.

108. In his sentencing remarks his Honour observed the following:

“The offender is said to be a man of 33, whether that is true or not I have no idea. He did not give evidence before me on Monday. There is a pre-sentence report in relation to him which I have found illuminating’

109. His Honour then summarised the PSR in some detail including the portions I have extracted above. His Honour then went on to state:

“I would be surprised and indeed amazed if a professional criminal like [the applicant] had any remorse whatsoever. Mr Foster on Monday said from the bar table that the offender expressed some words of regret saying he felt sorry for the victims or something of the kind to the police in the record of interview. I have no evidence of that but even if he did utter words like that, in my opinion they are no more than empty words just by a professional criminal really in the hope that they might dupe the judge into thinking that he is genuinely sorry for what he did. I do not think that [the applicant] is sorry for his victims in any way, shape or form whatsoever. He is probably sorry for himself in the predicament he finds himself in but of course that is a completely different thing and is not remorse”.

110. His Honour made a finding that the applicant was not remorseful. That was a finding open to his Honour on the evidence. There was no evidence put before him relevant to remorse in addition to the bare facts of the admissions, early plea of guilty and assistance to authorities. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides:

“(3)    Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

[…]

(i)   the remorse shown by the offender for the offence, but only if:

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)”

111. The reference to “evidence” in s 21A(3)(i)(ii) does not mean that there is a requirement that an offender give evidence of remorse. As Fullerton J (with whom McClellan CJ at CL and McCallum J agreed) observed In Butters v R [2010] NSWCCA 1 at [17], “[t]he requirement to provide evidence before remorse can be relied upon does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section” [emphasis in original]. The evidence can be put before the court in other ways including by an affidavit from the offender or by statements to third parties. Despite this, this court has stated on a number of occasions that such statements should be treated with caution. The relevant principles were summarised by Wilson J in Imbornone v R [2017] NSWCCA 144.

112. In Imbornone v R the applicant alleged, inter alia, that the sentencing judge had erred in failing to find that the applicant was remorseful when the evidence of remorse was contained in a report of a psychiatrist and the applicant did not give evidence. Wilson J (with whom Hoeben CJ at CL and RA Hulme agreed) summarised the relevant principles at [57] as follows:

“This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities:

1.   Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58] – [59].

2.   Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] – [25].

3.   It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].

4.   If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]–[19].

5.   Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, “to treat this evidence with anything but scepticism represents a triumph of hope over experience”: R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].”

113. This court has repeatedly observed that the fact that an offender does not give evidence on his or her sentencing proceedings is relevant to the question of what weight is to be given to any statements of remorse. Although it is to be accepted that it is open to a sentencing judge to reject sworn evidence of remorse by an offender such as the applicant, I am satisfied that there is a significant possibility that the conduct of the applicant’s legal representatives affected the outcome of the sentence in this matter and that a miscarriage of justice was occasioned as a result.

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Amendments

05 April 2019 - Amendments made pursuant to Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69 at [40]

15 August 2019 - [23] - "not" added

Decision last updated: 15 August 2019