Director of Public Prosecutions v Huseyin (Ruling)

[2024] VCC 1625

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00353

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALKAN HUSEYIN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2024
DATE OF RULING:	30 September 2024
CASE MAY BE CITED AS:	DPP v Huseyin (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1625

REASONS FOR RULING

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Subject:  Recusal Application - Ruling

Catchwords:  Application for Recusal - Breach of Community Correction Order -  Apprehended Bias -  Fair-minded Lay Observer.

Legislation Cited:                  Sentencing Act 1991 (Vic); Criminal Procedure Act 2009 (Vic).

Cases Cited:Ebner v Official Trustee in Bankruptcy (2000) HCA 63; QYFM v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) HCA 15; Johnson v Johnson   (2000) 201 CLR 488; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; Gild v The Queen - [2017] VSCA 367; DPP v Smith (2024) HCA 32; R v Williscroft, Weston, Woodley and Robinson (1975) VR 292; Markarian v The Queen (2005) HCA 25; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) HCA 41.

Ruling:  Application for Recusal Refused.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Allen	Office of Public Prosecutions
For the Accused	Mr D. Rofe	James Dowsley & Associates Pty Ltd

HIS HONOUR: 

1On 10 August 2020, Mr Huseyin committed an aggravated burglary in a hotel room in Croydon.  He was then sentenced by me on 8 May 2023, following an earlier sentence indication.  The sentence I imposed was three months imprisonment, combined with a twelve-month community correction order.  As the sentencing remarks reveal, Mr Huseyin's role, was relative to the co-accused, at the lowest end.  In essence, Mr Huseyin's role was to enable the other two men to gain entry to the victim's room.  Mr Huseyin only entered into the room later, while eating a packet of chips.  The other men assaulted the victim, Mr Huseyin had no part in these other violent crimes. Mr Huseyin's only other involvement was to enquire as to the welfare of the victim. 

2Thus in my instinctive synthesis, I came to the view that a proportionate and merciful sentence of three months, together with a twelve month community correction order was appropriate.  Before announcing sentence and as required by the Sentencing Act,[1] I had Mr Huseyin assessed for his suitability for a community correction order.  The report writer concluded Mr Huseyin was not suitable for a community correction order on the basis of his previous failed attempts to comply with community correction orders in the past.

[1]1991 (Vic).

3A recommendation that an accused is not suitable for a community correction order is not common, however, it does not prevent a court placing an accused on a community corrections order in any event. That is what happened here. Upon Mr Huseyin's release from prison on 7 August 2023, it is alleged that his compliance with the community correction order faulted. The officer of Community Corrections filed a charge alleging a breach of the community correction order. As is the practice, the charge was listed before me to hear and if appropriate, make orders pursuant to Part 3C of the Sentencing Act, in particular, ss 83AD and AS.[2]

[2] Ibid.

4When the contravention proceeding was brought on before me on 9 August 2024, counsel for Mr Huseyin made a foreshadowed application for recusal on the ground of apprehended bias.  In summary, it was submitted that the words used in the reasons for sentence, gave the appearance that if Mr Huseyin contravened the community correction order, my mind would be closed or I had such strong adverse views, but I would not be able, or willing, to consider Mr Huseyin's circumstances or submissions made on his behalf, at the contravention hearing on their merits.

5The impugned part of the sentencing remarks as identified by Mr Huseyin's counsel were as follows:

'You came back to Australia, and you took up bricklaying which you stuck with until about 30.  You had difficulty with drug, alcohol and gambling addictions.  These were at the heart of your very long criminal history.  This long criminal history and failed community corrections orders are of particular concern.  The assessor at Corrections found you were unsuitable for another community corrections order because of these past failures. For my part, I hope Corrections do not just give up on those whose path towards reform is rocky.  It is hoped that you can now, with your greater maturity, maintain commitment to a community corrections order.  I make it clear that if you do not, you will be resentenced by me to years of imprisonment.[3]

[3]DPP v Huseyin [2023] VCC 759 [14] – [15].

6It was submitted by Mr Huseyin's counsel that these words, in particular the final sentence, expressed clear views which established a basis for an apprehension of bias that warranted recusal.

7The prosecution opposes the application arguing that the words expressed were the sort of common warnings given to accused to motivate or ensure compliance and to deter an accused for non-compliance because of the consequences. 

8The test governing or guiding the resolution of recusal applications made on the basis of an apprehension of bias, is derived from the High Court decision in Ebner.[4]  The High Court recently in QYFM v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs,[5] delivered on 17 May 2023, carefully articulated the criteria, arising from Ebner and previous cases, as well as the application of those criterion.  Kiefel CJ and Gageler J wrote the following:

'The criterion for the determination of an apprehension of bias on the part of a Judge was definitively stated in Ebner by reference to previous authority and has often been repeated.  The criteria is whether "a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide".  The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability".

Application of the criterion was identified in Ebner and has been reiterated logically to entail (1) identification of the factor which is said might lead a Judge to resolve the question other than on its legal and factual merits.  (2) articulation of the logical connection between that factor and the apprehended deviation for deciding that question on its merits and (3) assessment of the reasonableness of that apprehension from the perspective of the fair-minded lay observer'.[6]

[4]Ebner v Official Trustee in Bankruptcy (2000) HCA 63.

[5] (2023) HCA 15.

[6] Ibid [37] – [38].

9Their Honours went on to say:

'The pivotal stage in the analysis on this strand of the appellant's argument lies in the assessment of the reasonableness, in the circumstances of the case, of an apprehension of that kind from the perspective of a fair-minded lay observer'.[7] 

[7] [45].

10That is, the characteristics of the fair-minded lay observer.  Their Honours went on:

'In undertaking that assessment, "it is the court's view of the public's view, not the court's own view, which is determinative".  The hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court's analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system.  The construct provides the "standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system.

Here, as the parties properly recognised in argument, much depends on the characteristics to be attributed to the hypothetical fair-minded lay observer in apply that standard.  The observer is to be placed in a contemporary setting.  Uncritical attitudes of the past cannot be assumed to be those of the present.

Being "fair-minded", the observer "is neither complacent nor unduly sensitive or suspicious".  Yet the observer is cognisant of "human frailty" and is all too aware of the reality that the Judge is human.  The observer understands that "information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making".

Being "lay", the observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular Judge".  Though the observer may be taken to understand that the Judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard "the irrelevant, the immaterial and the prejudicial"'.[8]

[8] [45] – [48].

11Other members of the High Court in that case who wrote separate or joint judgments, emphasised the points that I have cited from the Chief Justice's and Gageler J’s decision or judgment. 

12What was important in the case before the High Court and is critical here as well, is the attributes of the fair-minded lay observer in the context of the issues and facts evident in this case.

13Steward J, like the Chief Justice and Gageler J, referred to what was said by Kirby J in Johnson v Johnson.[9]  His Honour said in Johnson v Johnson, Kirby J described many of the necessary attributes of the fair-minded lay observer in the following way:

'The attributes of the fictitious bystander to whom courts defer have therefore been variously stated.  Such a person is not a lawyer.  Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided.  Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.  The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers.  The bystander must also now be taken to have, at the very least, in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted'.

The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality.   Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance by an isolated episode temporal or remarks to the parties or the representatives which was taken out of context.  Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious. [10]

[9] (2000) 201 CLR 488.

[10] Ibid 508-509 [53] (footnotes omitted).

14His Honour Steward J went on to cite from another High Court decision in recent times of CNY17.[11]  He quoted from Nettle J and Gordon J judgment, where they said:

'The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made.  The fair‑minded lay observer has "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]"'.[12]

[11] (2019) 268 CLR 76.

[12] Ibid 99 [58] (footnotes omitted).

15His Honour then went on to say:

'Whilst the hypothetical lay observer is not a lawyer, he or she is taken to have a basic knowledge of the issues to be decided and the nature of the proceeding or the process.  Even where the applicable statutory scheme is complex and here, the Migration Act 1958 Commonwealth might fairly be so described.  The lay observer will be taken to have knowledge of the key elements of that scheme'.[13]

[13] Ibid 99 [59] per Nettle and Gordon JJ.

16In very recent weeks, the High Court again revisited the issue of the attributes of a fair-minded lay observer in a criminal proceeding, with a new or perhaps novel context of how young or cognitively impaired witnesses are aided when giving their evidence in criminal trials for the prosecution.  In the DPP v Smith,[14] judgment delivered on 11 September 2024, of the plurality of the High Court Gageler CJ, Gleeson, Jagot and Beech-Jones JJ concluded that the fair-minded lay observer is to be considered as having many detailed attributes and understandings of the particular circumstances in issue.[15]

[14] (2024) HCA 32.

[15] Ibid [91].

17What was said by their Honours was:

'The fair-minded lay observer will be taken to know (a) the basic scheme of Part 8.2A of the Criminal Procedure Act, at least insofar as the role of intermediaries is concerned, (b) that an intermediary is an officer of the court, (c) that an intermediary appointed for a complainant - communicated to the court that the complainant's request to meet the Judge and counsel before the special hearing, (d) that the accused counsel did not object to the meeting, (e) that the purpose of the meeting was confined to the introduction of the Judge and counsel for the accused and the prosecution to the complainant and (f) that nothing happened at the meeting other than the introduction of the Judge and counsel for the accused and the prosecution to the complainant.

In these circumstances, it cannot be said that a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of any question the Judge is required to decide in the criminal proceeding'.[16]

[16] Ibid [95].

18The point here to be understood is, while the fair-minded lay observer is a hypothetical construct, it is essential that the broad context to the proceedings are seen as part of the fair-minded lay observer's understanding.  Indeed, very complex statutory schemes and proceedings are, or can be considered within the fair-minded lay observer's capacity in assessing the double might criteria and the application of that criteria in the three-stage process identified in the modern cases.

19The critical question in the three stages of the analysis required when considering recusal on the basis of apprehension of bias, is what can it be said that the fair-minded lay observer might understand of the process of sentencing an offender, to, in part, a community corrections order and then the process and proceedings involved in a contravention hearing once it is alleged the offender failed to comply.

20It is important in this case that the fair-minded lay observer would appreciate that the initial hearing imposing a combined sentence of imprisonment and a community corrections order, followed a plea of guilty. Indeed, that too followed a sentence indication hearing. Thus the fair-minded lay observer would understand that the offender pleaded guilty, although he did so more informed than in the past by reason of the sentence indication and he had the benefit of the restrictions that followed by the operation of s209 Criminal Procedure Act.[17] That is, no more severe sentence could be imposed than what was indicated.

[17]2009 (Vic).

21The contravention hearing that is proposed must too operate according to the statutory requirements of Part 3C of the Sentencing Act,[18] including that a contravention is a separate crime, with a maximum term of three months  imprisonment and consideration must be given to the factors set out in s 83AS(1) and (2).  

[18] 1991 (Vic).

22At this point, there is a contrast with the Court of Appeal authority relied on by counsel for Mr Huseyin, the matter of Gild v The Queen.[19]   That matter was a volunteered sentence indication, made without statutory authority by a trial Judge who was endeavouring to assist an accused to understand the stakes involved in his case.

[19] [2017] VSCA 367

23In the present case, both at the outset and here at the recusal application, sentencing principles and sentencing juris prudence are to the fore, in particular, in understanding the attributes of the fair-minded lay observer.  The fundamental principles of sentencing are in fact explicitly based on community values and understandings.

24In Williscroft,[20] the decision often cited is the first articulation of the sentencing methodology of instinctive synthesis,  Adam and Crockett JJ referred to the important extra curial lectures of the noted Supreme Court Judge Sir John Barry, who in 1969, said:

'The aims of punishment are often classified as retributive, preventative, deterrent and reformative, but this classification is plainly an oversimplification'.[21]

[20]R v Williscroft, Weston, Woodley and Robinson (1975) VR 292.

[21] Ibid [299].

25In Williscroft, the court went on to quote further from Sir John Barry's lectures and that part where Sir John Barry went onto cite the well-known academic author of the four volume history of the British Criminal Law,
Dr Leon Radzinowicz, who wrote of the criminal law is, and this is cited from Williscroft:

'fundamentally, but a social instrument wielded under the authority of the state to secure collective and individual protection against crime.  It is a social instrument whose character is determined by its practical purposes and its practical limitations. It has to be employ methods which are in important respects, rough and ready.  And in the nature of things, it cannot fully take into account mere individual limitations and the philosophical considerations involved in a theory of moral as distinct from legal responsibility. 

It must be operated within society as a going concern; to achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements.  It must be administered publicly in a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just.  Thus, it is a fundamental requirement of a sound legal system, that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls.  And this requirement has an important influence on the way in which Judges discharge the function of imposing punishments upon persons convicted of crimes.[22]

[22] Ibid.

26Adams and Crockett JJ in Williscroft concluded:

'Now ultimately, every sentence imposed represents the sentencing Judge's instinctive synthesis of all the various aspects involved in the punitive process'.[23]

[23] Ibid [300].

27These important sentencing principles were endorsed by the High Court in Markarian[24] and to a slight degree, retitled by the High Court in Dalgliesh as individualised sentencing.[25]  Reference to important sentencing purposes in 1971 in Williscroft, predated the Sentencing Act, but they were adopted and are now expressed in s 5 of the 1991 Act.  While these concepts of retribution, deterrence, prevention, reformation have long been understood is at the heart of sentencing and are now a part of the legislation, the other concepts in Williscroft, are not as often referred to, especially as sentencing becomes in modern time, overly technical.

[24]Markarian v The Queen (2005) HCA 25.

[25]Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) HCA 41

28That is, it has to employ methods which are in important respects, “rough and ready”.[26]  It must “operate within a society as a going concern…It should avoid excessive subtleties and refinements”. [27]  In my view, what is being endorsed is that the sentencing remarks which are now expansive. I refer to an example of long lost brevity, the initial paragraphs of Williscroft, which summarise the personal circumstances for Maori or Islander offenders in about four paragraphs, but sentencing remarks are to be directed at the accused and the wider community.

[26] R v Williscroft [299].

[27] Ibid.

29This approach would allow for the fair-minded lay observer to understand that sentencing remarks can and should condemn, but also encourage.  Further, that sentencing remarks of encouragement ought not be naive, but encourage by carrot and stick, which is a concept understood to accord with the community's appreciation of what is fair and just.  That is, a firm hand, together with an appropriate measure of mercy.  Thus, within the sentencing remarks that encourage rehabilitation, it is understandable that a Judge may speak firmly and unambiguously, so as to cut through to an accused who has, for example, failed before and was as a consequence, assessed as unsuitable for further Corrections order.  What needs to be made clear is that he must comply and if he does not, there will be little by way of other options.

30The words used at times and depending on the circumstances, should avoid unnecessary subtleties and refinements, so as to achieve there and then, the purpose of the sentence, which was in this case, to achieve genuine rehabilitation and thus, better protection of the community.  At that point, the use of unequivocal language is important and well understood.  The fair-minded lay observer would understand that such expressions are part of the sentence, but the fair-minded lay observer who well appreciated the concept, the pivotal role that instinctive synthesis had played, would understand that this role played in the original sentence would not simply be abandoned upon a later breach.

31Rather, instinctive synthesis would again play its appropriate role in the balancing of what an offender did, why they did it and what the future holds for them.  The fair-minded lay observer would appreciate Judge's effort, directed at aiding compliance, are not to be forever considered as a closed mind, that is closed to the hearing of what efforts were made and why by an accused and why a breach occurred and what the nature of the breach was in terms of its gravity.

32The context of the impugned words in the sentencing remarks, is what is all important.  That is, words within the sentencing reasons and the sentencing reasons themselves within - guided by the fundamental principles of instinctive synthesis and punishment that operates within society as the going concern and endeavours to avoid excessive subtleties and is from time to time, rough and ready.

33Read with all of paragraph 14 and the preceding sentence at the end of paragraph 15,[28] it can be seen that there were efforts to encourage, but an indication that non-compliance would lead to serious consequences.  In my view, the first step of the Ebner criteria is not established,[29] as is contended by the literal non-contextual reading put forward by counsel for Mr Huseyin.  The second step, if necessary, that there was fear that there might be a closed mind and a determination of the sentence, before a plea on any contravention, is also not established and I stress, both these steps take into account the relatively low threshold of the double might.

[28] DPP v Huseyin [2023] VCC 759 [14] – [15]

[29] Ebner v Official Trustee in Bankruptcy (2000) HCA 63.

34As I have made clear, the fair-minded lay observer has many attributes that would allow a sense that could be said for an offender will be considered on its merits, as an expression of the Judge's adherence to the instinctive synthesis methodology of sentencing, which applied to him during the course of the sentence and has expressed itself in the very impugned paragraphs brought forward by counsel for Mr Huseyin.

35In my view, the application for recusal must be refused.

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