O'Neil-Shaw v R - [2010] NSWCCA 42

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
O'NEIL-SHAW v THE QUEEN [2010] NSWCCA 42

FILE NUMBER(S):
2007/15080

HEARING DATE(S):
15 December 2009

JUDGMENT DATE:
10 March 2010

PARTIES:
David John O’Neil-Shaw – Applicant
The Queen - Respondent

JUDGMENT OF:
Basten JA Howie J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2007/11/0714

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

LOWER COURT DATE OF DECISION:
10 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[R v O’Neil-Shaw] [2009] NSWDC 48

COUNSEL:
S Odgers SC – Applicant
M Cinque – Respondent

SOLICITORS:
Marsdens Law Group – Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

CATCHWORDS:
APPEAL – criminal – sentence – denial of procedural fairness – remittal necessary where fact-finding miscarried – remittal to sentencing court differently constituted – [Criminal Appeal Act 1912] (NSW), ss 6(3), 12(2)
CRIMINAL LAW – sentencing – factors affecting sentence – malicious infliction of grievous bodily harm – moral culpability of offender – relevance of nature of relationship with victim – [Crimes Act 1900] (NSW), s 27
EVIDENCE – weight and sufficiency of evidence – uncontradicted evidence – whether rejection constitutes denial of procedural fairness
WORDS & PHRASES – "moral culpability"

LEGISLATION CITED:
[Crimes Act 1900] (NSW), ss 27, 33
[Criminal Appeal Act 1912] (NSW), ss 6, 12

CATEGORY:
Principal judgment

CASES CITED:
[Ali v Nationwide News Pty Limited] [2008] NSWCA 183
[Anderson v R] [2008] NSWCCA 211
[Chow v Director of Public Prosecutions] (1992) 28 NSWLR 593
[Edwards v R] [2009] NSWCCA 199
[GAS v The Queen] [2004] 217 CLR 198
[Histollo Pty Limited v Director General of National Parks and Wildlife Service] (1998) 45 NSWLR 661
[HSH Hotels (Australia) Limited v Multiplex Constructions Pty Limited] [2004] NSWCA 302
[Livesey v New South Wales Bar Association] [1983] 151 CLR 288
[Malvaso v The Queen] [1989] HCA 58; 168 CLR 227
[MWJ v The Queen] [2005] HCA 74; 80 ALJR 329
[The Queen v Olbrich] (1999) 199 CLR 270
[R v O’Neill] [1979] 2 NSWLR 582
[R v Palu] [2002] NSWCCA 381; 134 A Crim R 174
[R v SWC] [2007] VSCA 201; 175 A Crim R 71
[Tarrant v R] [2007] NSWCCA 124
[TKWJ v The Queen] [2002] HCA 46; 212 CLR 124

TEXTS CITED:
Mones, “Parricide: Opening a Window through the Defense of Teens who Kill” (1996) 7 [Stanford Law and Policy Rev] 61
Rowe, “Escaping a Life of Abuse: Children Who Kill Their Batterers and the Proper Role of ‘Battered Child Syndrome’ in Their Defense” (2006) [Crim Law Brief] 26

DECISION:
(1) Grant the applicant leave to appeal.
(2) Allow the appeal and quash the sentence imposed on the applicant by the District Court on 10 March 2009.
(3) Remit the matter to the District Court for resentencing of the applicant by a Court differently constituted.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/15080
DC 2007/11/0714
BASTEN JA
HOWIE J
JOHNSON J
Wednesday, 10 March 2010

David John O’NEIL-SHAW v THE QUEEN

Judgment

BASTEN JA: Late in the evening of 30 January 2007, Mr O’Neil-Shaw (“the applicant”) viciously attacked his stepfather (Mr John McRae) in the lounge room of the family home. As described by the trial judge, it was a savage attack with a large knife. It could have resulted in the death of the victim and involved multiple stab wounds to his neck, face, left arm and hand: R v O’Neil-Shaw [2009] NSWDC 48 at [1].
The applicant was put on trial in the District Court on two counts, the first being a charge of causing grievous bodily harm with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). The second count involved a charge of maliciously inflicting grievous bodily harm with intent to do so, contrary to s 33 of the Crimes Act. Each count carried a maximum penalty of 25 years imprisonment and each was subject to a standard non-parole period, being 10 years in respect of the first count and 7 years in respect of the second count.
In the course of the trial, the applicant pleaded guilty to the second count, a plea which was accepted by the Director in full satisfaction of the indictment. The applicant was duly convicted on 29 February 2008.
The sentencing hearing took place on 4 August 2008, with further written submissions in November. Judgment was delivered on 10 March 2009. The applicant was sentenced to a period of 8 years imprisonment, subject to a non-parole period of 4 years.
On 24 August 2009, he lodged an application for leave to appeal against sentence, specifying a sole ground of appeal, namely that “the head sentence imposed by the sentencing judge was manifestly excessive”. On the same day, written submissions were filed on behalf of the applicant addressing a different sole ground of appeal, namely that the “sentencing proceedings miscarried as a result of a denial of procedural fairness”. At the commencement of the hearing in this Court, counsel for the applicant indicated that he proposed to address only the ground identified in the written submissions. The Director’s submissions in reply, which were not filed until 11 December 2009, four days before the hearing of the appeal, focused solely on the ground identified as a denial of procedural fairness and the consequential order sought, being a remittal for re-sentencing pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW).
No prejudice was caused by the change in the basis of the application for leave to appeal and no objection to the change was taken at the hearing. Nevertheless, it is as well to emphasise that it is the responsibility of legal representatives of an applicant (or an appellant) to ensure that the grounds of appeal specified in the notice accurately reflect the matters sought to be put before the Court. This is particularly so in a jurisdiction where the specification of meaningful grounds is a rare occurrence. If prejudice does occur, there is likely to be delay which will adversely affect the applicant, at least psychologically, if not in the length of his or her incarceration. This is a result which the Court will strive to avoid, but requires the co-operation and assistance of the legal practitioners involved.
The complaint in the present case is based upon the manner in which the sentencing judge (Finnane DCJ) dealt with a critical issue in the applicant’s case, namely that his stepfather was “a controlling, violent and nasty individual”, adopting the language of the sentencing judge at [42]. Such an assessment was available, as his Honour recognised, on the basis of affidavits tendered and received in evidence from the applicant, his natural father, his mother, his siblings, his grandparents and two ministers of religion. The Director sought to cross-examine only the applicant and then not in respect of his description of his stepfather’s earlier conduct.
By way of contrast, the stepfather had been called in the prosecution case at the trial, before it terminated with the guilty plea, and had apparently been cross-examined at length as to his earlier treatment of the applicant and his siblings. (No transcript of that cross-examination was before this Court.) The sentencing judge, faced with the denial by the victim of a large part of the material now sought to be relied on by the applicant in the sentencing hearing, was required, in effect, to weigh his assessment of the victim against the untested evidence of witnesses from whom he had not heard oral testimony.
There was other evidence tendered on behalf of the prosecution, which was also not the subject of cross-examination, and which was favourable to the character of the stepfather: referred to by his Honour at [43]. This material did not play a significant part in his Honour’s reasoning and was not treated as greatly relevant to the present issue because the applicant accepted that his stepfather behaved differently in the presence of others who were not family members. Accordingly, there was no necessary conflict between the evidence of the outsiders and the evidence of the family members on which the applicant relied. The applicant contended that there was no purpose in cross-examining those who gave evidence for the prosecution, on the basis that they had not witnessed the events of which the family members spoke.
His Honour was conscious of the awkwardness of the situation in which the Court was placed, stating that he did not know why the prosecutor had not sought to cross-examine the deponents on their affidavits and also noting that counsel for the applicant had not sought to cross-examine the deponents of affidavits tendered on behalf of the prosecution from those who knew the family and supporting the victim’s claim “that he treated all of the family well, took them on holidays, provided for them in every way and was in every sense a good father”: at [26]. After referring generally to these conflicting bodies of material, his Honour stated at [27]:
“The affidavits are reminiscent of affidavits in family law proceedings. They are full of claims and counter claims and I am not able to determine where the truth lies. I am not willing to make any finding that Mr McRae treated any member of his family cruelly, although it is possible that he was at times unfeeling in his attitude and that he was someone who liked to control the lives of the family members.”
The position taken for the prosecution at the sentencing hearing appears to have been that his Honour did not need to determine the state of relationships within the family and in particular whether the stepfather was abusive. In submissions, counsel relied upon the fact that “the last time the offender alleges that he was struck by Mr McRae was in the year 2000, some seven years prior to the offence”: Tcpt, 04/08/08, p 32 (25). In other words, such conduct could not explain, let alone justify, the ferocity of the attack in January 2007.
There were a number of difficulties created by that approach. First, the evidence from the applicant (supported by others) was that his anger against his stepfather was not limited to attacks on him, but included cruelty to his siblings, which continued into 2007: see, eg, the affidavit of Helene Mary Lander of 11 April 2008, paragraphs 23 and 24. Secondly, the applicant was not cross-examined in relation to his knowledge of such matters or his response to his stepfather’s treatment of his siblings. Thirdly, although there appear to have been other grievances held by the applicant against his stepfather (and indeed his mother) the ferocious attack was not explained by such matters. His Honour stated at [20]:
“In my opinion what follows from this is that he was motivated to attack Mr McRae for wrongs he considered Mr McRae had done to him and to his brothers and sisters. He was resentful because he had been excluded from an overseas holiday and he was resentful because his parents had lots of money and he had very little. He was not responding to any acts of violence other than perhaps excessive discipline inflicted on him eight years before and at earlier times. He was angry with his mother as well as with Mr McRae.”
The first and third sentences in this passage appear to be at odds. However, both downplay the severity of the conduct of the stepfather, described in the evidence. They involve a rejection of the applicant’s evidence on which he was not cross-examined; a rejection of the evidence of at least some of the lay family members who were not cross-examined, and an absence of consideration of the medical evidence.
The last requires identification. There was evidence from a psychologist, Mr Mark Benad, dated 23 March 2007. Mr Benad set out the history he had obtained from the applicant of the relationship between the applicant and his stepfather and continued:
“If one is to accept Mr O’Neil-Shaw’s reports, it appears that he has endured a protracted, destructive relationship with the stepfather. He reports having endured both verbal and physical menace. He suggested that his siblings had tolerated similar experiences. He developed depression in response to this dynamic. Mr O’Neil-Shaw became consumed with a sense of injustice. He could not accept his stepfathers [sic] influence in his life any more. He was tired of being the victim. Unfortunately time reinforced, rather than resolved anger towards his stepfather. The offending behaviour occurred.
As is commonly seen in clinical practice, depression particularly in males, regularly manifests itself in explosive outburst. The offence before the court reflects this phenomenon.”
In addition, there was a report from Dr Jonathan Phillips, consultant psychiatrist, dated 9 January 2008. He too set out the background history obtained from the applicant in some detail. His opinion included the following statements:
“There is conclusive psychological evidence that brutality within a family system, vested by a parent onto children, has a marked adverse effect on the psychological development of children, particularly interfering with the development of a sense of stable self, setting the stage for psychological disorders (depression spectrum, anxiety spectrum disorders in particular), setting the stage for the development of personality disorders (explosive personality disorder, anti-social personality disorder in particular) and evoking very strong anger (which is not readily discharged during pre-adolescent years). The more frequent the violence directed at children, the higher the order of violence, the more destructive will the process become.
All materials available to me point strongly to David O’Neil-Shaw having become a target for John McRae’s violence when the defendant’s mother began a relationship with that person, and continuing until the time of the alleged incident on 31 January 2007. …
Mr O’Neil-Shaw gave me a history of violent acts perpetrated by John McRae from the time when he was five years old, and involving his sister additionally, and to a lesser extent his half-siblings rather later. He brought to my attention the constant severe punishment meted out by the older man, bashings, being hit with belt buckles, being trodden on, being thrown downstairs, being hit with timber, being hit over the knuckles with a knife, being thrown around by his hair, being locked in a dark laundry, being made to stand unmoving in a particular place. The violence of John McRae was noted in documents made by his wife.
It is hardly surprising in the circumstances that Mr O’Neil-Shaw had recurrent nightmares during his formative years, and performed poorly at school.
Further, Mr O’Neil-Shaw had no chance to retaliate until he was 14-15 years old. It can be accepted that until his early adolescent years the accused would have generated considerable chronic anger linked with John McRae’s chronic violent behaviour, for which he could find no useful discharge. The accused made clear that he became increasingly aggressive in his interaction with the older man from that time.
… It is my strongly held opinion, given all information available to me, that Mr O’Neil-Shaw suffered psychological damage of a high order over many years as a consequence of the violent acts perpetrated by John McRae.”
Although the express connection is not drawn with any clarity, there are suggestions in the reports that the applicant’s resort to drugs and alcohol was itself a consequence of his brutal mistreatment by his stepfather.
At [47], the sentencing judge noted:
“During the trial, Mr Littlemore QC put the submission that Mr McRae was a monster. I cannot accept that submission. Mr McRae’s wife and children have all abandoned him and no doubt this has something to do with his treatment of them in the past, but I am unwilling to conclude that that treatment provided any basis whatsoever for the offender to attack him.”
Further, his Honour stated, in respect of the attack:
“53… There was no preceding quarrel and he was not in any way responding to any threat made to him or to any other member of the family. He was not defending himself or anyone else and it could not be said that the victim had acted violently towards him or towards any other member of the family in his presence at any time close to the time of this attack.
54In my opinion, the facts lead me to conclude that for many years the offender had harboured deep resentment towards the victim, that their personal relationship at most times was not good, and there had been episodes of physical chastisement of him by the victim at various stages over the years of his life. None of this could justify or explain the violent attack by the offender and his victim.”
In addition to the reports from the experts referred to above, the parties appear to have been referred by his Honour (after the hearing) to two articles, namely Mones, “Parricide: Opening a Window through the Defense of Teens who Kill” (1996) 7 Stanford Law and Policy Rev 61, and Rowe, “Escaping a Life of Abuse: Children Who Kill Their Batterers and the Proper Role of ‘Battered Child Syndrome’ in Their Defense” (2006) Crim Law Brief 26. (It is possible that it was his Honour who first identified the material.) His Honour noted this material in the following passage:
“31It was put to me in submissions that the reasons for this attack lay in the fact that the victim had treated him and his siblings brutally over the years and he was acting in some way to protect them. I raised with Mr Stuart Littlemore QC, his counsel, whether he was raising as a partial defence to the seriousness of the charge that the offender was suffering something akin to battered woman syndrome. Mr Littlemore assented to this proposition and I have looked at literature and case law. I attach the material in an appendix to this judgment.
32 None of this material assists the offender.”
The view that the psychological and psychiatric material did not assist in explaining the event and did not provide a basis for some amelioration of the moral culpability of the offender, taken in combination with his Honour’s apparent rejection of the evidence of the most serious forms of abuse, gives rise to concern for two reasons. The first is that, to a significant extent, the attack becomes inexplicable. The second is that there was significant, consistent and detailed evidence in relation to the callous brutality of the stepfather. There may be no easy line to be drawn between strict parenting and sadistic mistreatment, but the important question, in this case, is the effect on the applicant of the treatment which he (and others) described.
As noted above, his Honour accepted that the evidence tendered on behalf of the applicant painted the victim as “a controlling, violent and nasty individual”. However, noting that the evidence was “untested”, he described it as “far from convincing” and as not establishing that Mr McRae was “brutal, callous or cruel”: at [44]. He preferred the impression he had formed on the basis of the cross-examination of Mr McRae:
“The impression I formed was that he was an honest witness, that he had been very seriously injured and he was hurt by the reaction of his family, all of whom supported the perpetrator rather than him.”
From the passages set out above, it is clear that his Honour was not in doubt as to the “picture” which the applicant’s evidence painted: he did not accept it.
In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, Kirby P set out a number of principles governing the functions of prosecutors and judges involved in sentencing proceedings. The fifth principle (at p 606E) stated:
“The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge’s sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge’s performance of the judicial function by their plea bargaining: see Malvaso v The Queen ….. A statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes. The judge may feel the need for further material, for example, by way of pre-sentence report to assist in the performance of the sentencing function. The parties cannot forbid the judge to seek such assistance.”

This statement was drawn to the Court’s attention by counsel for the Director. She also referred to the remarks of Howie J (with whom Levine and Hidden JJ agreed) in R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [21] where his Honour stated:
“It behoves the parties, especially after a “plea bargain”, to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court: Chow … at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. … If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: [referring to Chow at 606].”
It is also appropriate to note the context of the comments in Malvaso v The Queen [1989] HCA 58; 168 CLR 227 at 233, referred to by Kirby P in Chow. In Malvaso, the prosecution had “stood mute” whilst counsel for the offender had sought (and obtained) a suspended sentence, which was later challenged as manifestly inadequate.
Statements of general principle must be understood in their context. Nothing in the statement set out above from Chow should be understood as inconsistent with the obligation of the sentencing judge to impose the appropriate sentence, based on the evidence properly before the court. As explained by Howie J in Palu, the factual basis should be identified with particularity and disputed facts resolved by the accusatorial process upon the evidence before the court. Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course.
It is a basic rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, both so that the witness may respond and so that the court has the benefit of assessing the response: R v SWC [2007] VSCA 201; 175 A Crim R 71 at [12]-[15] (Maxwell P, Kellam JA and Kaye AJA). Where there has been no cross-examination of witnesses to contest their evidence, “judges should in general abstain from making adverse findings about parties and witnesses”: MWJ v The Queen [2005] HCA 74; 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ).
In reply to this complaint of procedural error, the Director said that at trial he “did not concede the matters alleged but submitted that, even if they occurred, they were so remote in time as to have little, if any, effect on the sentence to be imposed”: written submissions in this Court, par 35. That may be so, but it is also apparent from the transcript of the hearing that counsel for the prosecution, after indicating a time estimate based on significant cross-examination, abandoned that approach. That the evidence did not establish any immediate threat or provocation at the time of the attack was common ground; nevertheless, to the extent that the unchallenged material demonstrated a lessening of the moral culpability of the offender, the sentencing judge should have accepted it and taken it into account in its terms. Further, the submission ignored the psychiatric and psychological evidence, as well as the articles identified by his Honour.
Finally, the Director submitted that the appeal should be dismissed because, even if the matters relied on by the applicant were taken into account and given their proper weight, no less severe a sentence was warranted in law. This submission was based on the terms of s 6(3) of the Criminal Appeal Act, which reads:
“6 Determination of appeals in ordinary cases
…
(3)On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”
Read literally, this provision allows of only two courses, namely to quash the sentence and impose another sentence, or to dismiss the appeal. However, such a reading would deny an applicant the right to an effective appeal against sentence where the sentencing process has miscarried, but this Court is unable to determine what is the appropriate sentence.
In its terms, s 6(3) (dealing with sentencing appeals) is quite differently, and more simply, worded in contrast to s 6(1) (dealing with conviction appeals) with its proviso requiring dismissal of an appeal where there has been no substantial miscarriage of justice. Nevertheless, they serve similar purposes. In dealing with s 6(1), McHugh J noted in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [76]:
“In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. … It cannot be right to insist that the appeal can succeed only if the court thinks that counsel's conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel's conduct might have affected the result.”
In relation to a sentence appeal, there is no question of substituting a trial by this Court for trial by jury. Nor is there any objection in principle to this Court exercising sentencing powers in place of the sentencing judge. Rather, the situation in which this Court is placed resembles that of any appellate court, civil or criminal, where error has been established but the Court is not in a position to determine the matter itself. The only appropriate course is to direct a retrial of the issue. Such a course is open pursuant to s 12(2) of the Criminal Appeal Act, which provides a supplemental power not to be understood as inconsistent with the scope of s 6(3).

Nature of remittal

It follows that the sentence must be quashed and the matter must be remitted for determination in the District Court. In making such an order the Court is empowered to give directions “subject to which the determination is to be made”: s 12(2). Counsel for the applicant sought a direction that the sentencing proceed before a judge other than Finnane DCJ, who had sentenced the applicant on 10 March 2009. The submission was not the subject of elaboration.
There is no reason to suppose that the power of this Court under s 12(2) to give directions would not extend in an appropriate case to a direction that the District Court be differently constituted for the purposes of the resentencing. The question is, rather, in what circumstances it is appropriate to make such an order.
In the present case, the order could have unfortunate consequences in that it might require that the victim give his evidence again and be cross-examined again in relation to his treatment of both the applicant and other family members over long periods of their lives. It might also necessitate the applicant being further cross-examined, although, as noted above, his earlier cross-examination did not extend to this material.
These concerns, however, are of limited significance. The original trial, at which the stepfather was cross-examined, took place in February 2008. One could not expect the trial judge to rely, more than two years later, upon the opinion he originally formed. Further, such reassessment may require consideration of oral testimony given by witnesses at the resentencing. It is therefore likely that the stepfather would need to testify again in any event.
The primary basis for acceding to the direction sought by the applicant is that the sentencing judge formed views based on credibility, both as to the character of the applicant and his stepfather. There is a real risk that a further hearing before the same judge would give rise to a reasonable apprehension of prejudgment on his Honour’s part. Given the lapse of time, that may seem unlikely, but the law requires that reasonable perceptions as to what an objective bystander may think might happen must be taken into account, not merely the Court’s view of what is likely.
In the circumstances, it is appropriate to make the direction sought.

Conclusion

The following orders should be made:
(1) Grant the applicant leave to appeal.
(2)Allow the appeal and quash the sentence imposed on the applicant by the District Court on 10 March 2009.
(3)Remit the matter to the District Court for resentencing of the applicant by a Court differently constituted.
HOWIE J: For the reasons given by both Basten JA and Johnson J, I agree with the orders proposed by Basten JA. I also agree with the judgment of Johnson J as to how the judge should approach the determination of the sentencing proceedings after the matter is remitted to the District Court.
JOHNSON J: I have had the considerable advantage of reading the judgment of Basten JA. I agree with his Honour’s reasons and proposed orders. I wish to make a number of additional comments concerning the course of proceedings in the District Court, and the process which lies ahead in the District Court having regard to the orders to be made by this Court.

The Course of Proceedings in the District Court

The trial of the Applicant commenced on 25 February 2008 upon charges of attempted murder and maliciously inflict grievous bodily harm with intent to do grievous bodily harm. On 29 February 2008, the fifth day of the trial, after the victim had completed his evidence, the Applicant pleaded guilty to the alternative charge (under s.33 Crimes Act 1900) and the Crown accepted that plea in full satisfaction of the indictment.
The Applicant’s plea of guilty constituted an admission by him of the essential elements of the s.33 offence: R v O’Neill [1979] 2 NSWLR 582 at 588, 596. It remained for findings of fact to be made by the sentencing Judge, by reference to evidence adduced by the parties at the sentencing hearing.
Following the entry of his plea of guilty on 29 February 2008, the sentencing hearing was adjourned and the Applicant was allowed conditional bail. The Applicant remained at liberty on bail until sentence was passed on 10 March 2009.
The sentencing hearing came before his Honour Judge Finnane QC on 4 August 2008. It is apparent that, by then, the parties had served upon each other a large number of affidavits of different persons (including the victim and the Applicant) which had been sworn or affirmed since 29 February 2008. It appears that a number of these affidavits had been prepared for the purpose of the criminal proceedings and others for the purpose of proceedings in the Family Court of Australia. In one way or another, all affidavits touched upon the relationship between the victim and the Applicant and other members of the Applicant’s family.
The sentencing hearing listed to commence on 4 August 2008 had been estimated to run three days. Clearly, it had been expected that a number of persons would give oral evidence and be cross-examined on their affidavits. As Basten JA has observed, if there were significant disputed issues of fact which were said to bear upon sentence, then a contested hearing of this type was both conventional and appropriate: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 605; R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 179-180 [21].
No agreed statement of facts was tendered at the sentencing hearing. The Crown relied upon the evidence of the victim which had been given at the trial in February 2008. It appears that the Crown Prosecutor and senior counsel for the Applicant had discussed the course of the sentencing hearing with a view to shortening its duration. All affidavits were tendered by the Crown and the Applicant without objection. Only the Applicant gave oral evidence at the sentencing hearing. He adopted the contents of his affidavit of 14 April 2008 as being true and correct. He was cross-examined by the Crown Prosecutor, but not on issues going to the disputed history of violence by the victim against the Applicant and other family members. From the transcript of the sentencing hearing, it is apparent that both the Crown Prosecutor and senior counsel for the Applicant urged the sentencing Judge to make findings of fact either accepting the victim’s account concerning the relationship between the parties (the Crown submission) or rejecting the victim’s account and accepting that of the Applicant and the accounts of other deponents who had not been cross-examined (the Applicant’s submission).
Whatever advantage the Crown Prosecutor and senior counsel for the Applicant perceived in the saving of time in taking this course, a significant procedural irregularity was imposed upon the sentencing Judge. His Honour queried counsel as to how the factual issues were to be determined in the absence of cross-examination. No satisfactory answer was provided to his Honour in this respect.
With the benefit of hindsight, the preferable course would have been for his Honour to reject the approach urged upon him by counsel. The parties cannot impose an approach such as this upon a sentencing Judge, in particular where a consequence may be that procedural fairness is denied: cf Chow v Director of Public Prosecutions at 606; GAS v The Queen [2004] 217 CLR 198 at 211 [30]-[31]. In truth, the sentencing hearing departed the rails at this point and never returned to proceed on track. This was the direct result of the approach taken by the parties at the sentencing hearing.
Where affidavits are read without objection in civil proceedings, with deponents not being required for cross-examination, the rule is that such evidence should be accepted unless there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence: HSH Hotels (Australia) Limited v Multiplex Constructions Pty Limited [2004] NSWCA 302 at [86]-[87]; Ali v Nationwide News Pty Limited [2008] NSWCA 183 at [110]-[112].
The position was compounded in this case because, although the Applicant gave evidence and was cross-examined by the Crown Prosecutor, the cross-examination did not touch at all upon the disputed history of violence by the victim towards the Applicant and others. As Basten JA has observed, this approach did not comply with the principles expressed in MWJ v The Queen [2005] HCA 74; 80 ALJR 329 at 339 [38]-[39].
The Applicant’s plea of guilty, and his own evidence, contained admissions of a savage knife attack carried out upon the victim, with intent to inflict grievous bodily harm, and with very significant injuries being inflicted from multiple knife wounds. The victim’s (undisputed) evidence concerning the attack and its consequences also established these matters. The affidavits tendered at the sentencing hearing, together with the psychiatric and psychological reports, were said to shed light upon the relationship between the victim and the Applicant, which would assist an understanding of how this grave crime of violence came to be committed. It was a matter for the sentencing Judge to consider what relevance this alleged history had. As the evidence was sought to be adduced at a contested hearing, with the defence contending that it operated to mitigate sentence, it may be taken that the onus of proof lay upon the Applicant on this issue: The Queen v Olbrich (1999) 199 CLR 270 at 280-281 [24]-[28]. Having made findings of fact by reference to the totality of the evidence, it would be necessary for the sentencing Judge to determine whether, and in what way, this factor bore upon an assessment of where this s.33 offence lay on the range of objective seriousness. As has been noted, a standard non-parole period of seven years applies to a s.33 offence.
In truth, the submissions made to the sentencing Judge on 4 August 2008, did not provide assistance to the Court in the determination of these issues. It has been said that a sentencing Court is entitled to expect assistance from counsel, in discharge of counsel’s duty to the Court, with respect to relevant issues, including the facts to be found on sentence: Edwards v R [2009] NSWCCA 199 at [11]. In my view, given the point that had been reached by 4 August 2008, the discharge of counsel’s duty required a preparedness to cross-examine deponents, and to thereafter make pertinent submissions, so that the Court could determine issues said to be relevant to sentence.
At the conclusion of the sentencing hearing on 4 August 2008, the sentencing Judge adjourned the matter for sentence on a date to be fixed. Thereafter, the sentencing Judge provided certain published articles to counsel for their response, with senior counsel for the Applicant providing a further written submission in this respect on 12 November 2008, and the Crown Prosecutor responding on 24 November 2008. Whether this published material was relevant on the question of sentence or not, it was entirely secondary to the factual dispute which the parties had left to the sentencing Judge to resolve, without assistance by way of cross-examination to test the accounts provided by the witnesses and submissions based upon cross-examination.
Thereafter, the sentencing Judge passed sentence on 10 March 2009. As Basten JA has demonstrated, the approach taken constituted a denial of procedural fairness to the Applicant. It must be said that this was the almost inevitable consequence of the approach taken by the Crown Prosecutor and senior counsel for the Applicant at the sentencing hearing on 4 August 2008.

Remittal to the District Court

The Crown submitted that this Court should conclude that no other sentence was warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912, so that the appeal ought be dismissed. The difficulty with this submission is that it cannot be addressed properly without resolution of the factual dispute which was tainted by procedural irregularity and denial of procedural fairness in the District Court. In my view, s.6(3) ought not be utilised to determine the appeal.
I agree with Basten JA that the appropriate course is to remit the sentencing hearing to the District Court for further hearing. This is a most regrettable, but unavoidable, result. It is the direct consequence of the approach taken by the parties to the determination of sentence. Remittal under s.12(2) Criminal Appeal Act 1912 will permit a Judge of the District Court to determine the question of sentence upon the evidence adduced before that Court: Histollo Pty Limited v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661 at 681-683; R v McLean [2001] NSWCCA 58; 121 A Crim R 484 at 495-496 [62]. The parties will thereafter have their appeal rights under the Criminal Appeal Act 1912 with respect to sentence: R v Palu at 185 [43].

I have given careful consideration to the question of whether the remitted sentencing hearing ought proceed before Judge Finnane QC, or whether the hearing should commence afresh before a different Judge.
Having regard to the findings made by the sentencing Judge, I agree with Basten JA that the justice of the case requires the sentencing hearing to proceed afresh before a different Judge: cf Livesey v New South Wales Bar Association [1983] 151 CLR 288 at 299-300.
It will be a matter for the sentencing Judge to make findings of fact for the purpose of sentence. The Applicant has pleaded guilty to an offence carrying a maximum penalty of imprisonment for 25 years and a standard non-parole period of seven years. That the stabbing attack upon the victim in this case was a savage and serious one is not in question. The issue which this Court has been called upon to consider is the procedural irregularity, and its consequences, concerning disputed evidence about the history between the victim and the Applicant. It will be a matter for the sentencing Judge to make findings with respect to this offence, in accordance with the principles in Anderson v R [2008] NSWCCA 211 concerning assessment on the range of objective seriousness of a s.33 offence.
It would not be correct for a sentencing Judge at a fresh hearing to approach the question of sentence upon the basis that, if more favourable findings of fact are made for the Applicant, then the sentence imposed on 10 March 2009 ought be taken as the upper limit with reduction of the sentence to follow. In my view, the proper approach for the sentencing Judge at the fresh hearing is to put completely to one side the sentence imposed on 10 March 2009 which is to be quashed by this Court. There is no parallel with a case where an offender is sentenced after retrial (Tarrant v R [2007] NSWCCA 124 at [15]-[31]). What the Applicant is entitled to is a sentencing hearing and determination conducted according to law. It will be a matter for the sentencing Judge to fix sentence in accordance with the facts found and applicable sentencing principles.
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LAST UPDATED:
10 March 2010