Parker v Tasmania
[2019] TASCCA 16
•8 October 2019
[2019] TASCCA 16
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Parker v Tasmania [2019] TASCCA 16
PARTIES: PARKER, Leigh John
v
STATE OF TASMANIA
FILE NO: CCA 3282/2018
DELIVERED ON: 8 October 2019
DELIVERED AT: Hobart
HEARING DATES: 6 June and 29 August 2019
JUDGMENT OF: Pearce J, Geason J, Marshall AJ
CATCHWORDS:
Criminal Law – Sentence – Sentencing procedure – Factual basis for sentence – Generally – Facts adverse to accused – Disputed facts adverse to accused not resolved before sentence – Miscarriage of sentencing discretion– Appeal allowed – Whether an apprehension of bias - Remitted to sentencing judge for re-sentence.
Sentencing Act 1997 (Tas), s 81.
Criminal Code (Tas), s 402.
O'Neil-Shaw v The Queen [2010] NSWCCA 42; GAS v The Queen [2004] HCA 22, 217 CLR 198; R v Olbrich [1999] HCA 54, 199 CLR 270; Kentwell v The Queen [2014] HCA 37, 252 CLR 601; Minister for Immigration and Multi-cultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507, applied.
Dale v Peterson Serial No 64/1972, referred to.
S v Tasmania [2007] TASSC 62, 16 Tas R 292; S v Tasmania (No 2) [2007] TASSC 85, 16 Tas R 449; Roberts v State of Tasmania [2011] TASCCA 2, followed.
Aust Dig Criminal Law [3308]
REPRESENTATION:
Counsel:
Appellant: K Baumeler
Respondent: A Shand
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2019] TASCCA 16
Number of paragraphs: 59
Serial No 16/2019
File No CCA 3282/2018
LEIGH JOHN PARKER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
GEASON J
MARSHALL AJ
8 October 2019
Orders of the Court
Appeal allowed.
Sentence imposed by Blow CJ on 28 November 2018 quashed.
Matter remitted to Blow CJ for re-sentence.
Serial No 16/2019
File No CCA 3282/2018
LEIGH JOHN PARKER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
8 October 2019
This is a sentencing appeal. The appellant pleaded guilty to two counts of assault. The plea to one of the counts was accepted by the Crown in satisfaction of a charge of causing grievous bodily harm. The appellant was sentenced by the learned Chief Justice to imprisonment for four years and three months from 27 August 2018. His Honour ordered that the appellant not be eligible for parole until he has served two years and nine months of the sentence.
As originally drafted, the notice of appeal contained only one ground, that the sentence is manifestly excessive. However, in the course of argument, the appellant challenged the manner in which the sentencing judge determined the factual basis for sentence. The appellant contends that some circumstances of the crimes asserted by the Crown to the sentencing judge were materially different, in ways which were adverse to the appellant, to the description of the circumstances of the crimes asserted by the appellant. The differences in the respective versions were not identified and resolved before his Honour proceeded to sentence, substantially on the basis of the Crown statement of facts. Leave was granted to add two new grounds of appeal in the following terms:
"(a)The learned sentencing judge erred by making factual findings, inconsistent with the unchallenged assertions of fact by the defence;
(b)The findings of fact made were objectively more serious than those asserted by the defence and led to the imposition of a sentence that was manifestly excessive."
For the reasons which follow the first of those additional grounds should succeed.
The undisputed circumstances of the assaults
A plea of guilty is an admission of all of the elements of the crime charged: Marlow v The Queen [1990] Tas R 1 at 17; R v Olbrich [1999] HCA 54, 199 CLR 270 at [4]. Any further facts by reference to which an offender is sentenced must generally be either proved to the requisite standard, admitted or agreed: R v Olbrich; Weininger v The Queen [2003] HCA 14, 212 CLR 629. In GAS v The Queen; SJK v The Queen [2004] HCA 22, 217 CLR 198 the plurality said at [30]:
"In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case." [Footnote omitted.]
Unless admitted or agreed, facts adverse to an offender must be established beyond reasonable doubt. Facts favourable to the offender may be established on the balance of probabilities: R v Olbrich at [27]; Leach v The Queen [2007] HCA 3, 230 CLR 1 at [41] and Filippou v The Queen [2015] HCA 29, 256 CLR 47 at [64] and [66].
In this case, the appellant admitted by his plea to two counts of assault that he twice applied force to the person of the complainant, and that each application of force was unlawful. The sentencing hearing commenced on 21 November 2018. The sentencing judge was informed of facts relevant to sentence by means of a statement of facts read by counsel for the Crown. Counsel for the appellant then made a plea in mitigation. Some of the facts are uncontentious. The assaults were committed on 27 September 2017 by the appellant against his then partner. At the relevant time the appellant was aged 54 and the complainant was 53. They had been in a relationship for about five years and lived at Murdunna, on the Tasman Peninsula. In May 2017 the complainant was diagnosed with terminal ovarian cancer. In July 2017 a hysterectomy was performed. Between then and early September she underwent chemotherapy. The appellant was in prison from April to August 2017, serving sentences for driving offences. After his release in early August he acted as his partner's carer. In early September the complainant had another week in hospital after blood clots were discovered in her lungs.
On 27 September 2017 the appellant and the complainant were at home at Murdunna. The appellant had been drinking all day and was intoxicated. He and the complainant engaged in a prolonged argument. That evening, in the course of the argument, the appellant struck the complainant to the back of her head with a teapot. That is the first assault. He then pushed the complainant over causing her to strike her head on an item of furniture, either a bed or a chest of drawers. That is the second assault. As a result of the fall the complainant's surgical wound ruptured causing her bowel to protrude. She suffered extreme pain. Despite her injury, she took herself from the bedroom to outside the house, and ended up on the ground in the driveway.
The appellant phoned 000. He then went to the home of a neighbour and asked for a cigarette. He told the neighbour that the complainant was in the driveway, that her "guts were hanging out", that he had put a blanket over her and that she had bitten him on the ear. The neighbour went to the complainant and attended to her. The complainant was falling in and out of consciousness. The appellant made a second "000" call querying the ambulance delay. When ambulance officers arrived at around 10pm, they found the complainant in a critical condition. She was rushed to hospital having suffered an evisceration of her small bowel, an abrasion to her nose, a laceration to the back of her head, grazes to her hands and left knee and developing bruises. She required emergency surgery to repair her bowel and surgical wound. The laceration to the back of her head was closed with nine staples. The complainant was in hospital until 9 October 2017 but was re-admitted for four days from 16 October for surgery to treat a wound infection.
Counsel for the Crown asserted to the sentencing judge that "[a]s a result of the assaults the complainant has had ongoing problems, including a recent herniated bowel. She suffered significant emotional distress and trauma and relocated interstate. She's been under the care of a psychologist." A victim impact statement was read in which the complainant described significant ongoing physical and psychological impact of the crimes and that she had left Tasmania to return to Western Australia as it was "the only way to protect myself" and feel safe. As the sentencing judge stated:
"As a result of these assaults she went back where she came from, leaving behind all her friends, furniture and possessions, including items of great sentimental value. She now has the support of her two daughters, but nobody else. She had to get new doctors and a new palliative team."
Counsel for the respondent informed the sentencing judge of statements made by the appellant during the 000 call. During the call he admitted pushing the complainant over on the bedroom floor and stated that her stomach wound "must have burst when I pushed her over". When he was interviewed by the police on 28 September 2017 he stated "I pushed her arse over tit in the bedroom", asserting that it was because she had bitten his right ear, and that he hit her on the head with her mother's teapot. In a letter he later wrote to a neighbour he stated that he was sorry about what had happened to the complainant, and that "I don't know what happened. I just flipped out."
Inconsistency between the Crown facts and the plea in mitigation
In her submissions to this Court, counsel for appellant identified what are said to be a number of inconsistencies between the facts asserted to the sentencing judge by the Crown and the defence. The matters of dispute raised by the appellant relate to facts asserted by the Crown about the immediate circumstances of the assaults, the consumption of alcohol by the complainant, the reason the complainant returned to Western Australia following the assaults, allegations that the appellant had committed earlier incidents of violence and the appellant's record for violence. To my mind, only one matter, the immediate circumstances of the assaults, is of consequence. That expression of view is not intended to confine any future sentencing proceedings, but it is unnecessary for the purposes of this appeal to go beyond that aspect of the appellant's contentions.
The disputed circumstances of the assaults
In the proceedings before the sentencing judge on that day, counsel for the Crown described the assaults in the following terms:
"During the course of the argument the accused had picked up a tea pot which had belonged to the complainant's mother and hit the complainant over the head with it. The complainant went into the bedroom to get away from the accused, however the accused continued to come in and out of the bedroom verbally abusing the complainant. The complainant had put on her nightie and removed her dentures intending to go [to] bed and hoping that the arguing would stop.
The complainant tried to shut the bedroom door to keep the accused out, however he pushed in. The accused told the complainant that he wanted her to get out of his house. She told him that she wasn't going anywhere at that time of night and she was standing by the end of the bed. The accused pushed the complainant backwards, which caused her to fall backwards against the bed and slide onto the floor. She got up and he shoved her again.
As she was on the ground the complainant – in her words, 'Felt something give.' Her stomach felt wet and she felt extreme pain, which she described as 11 on a scale of 1-10. The complainant's hysterectomy wound had split open and her bowel had protruded through her surgical wound. The complainant began to run outside to get away from the accused. When she made it outside of the house she ended up on the ground, on the driveway. She was in and out of consciousness. The accused called 000."
In his plea in mitigation counsel for the appellant asserted:
"I'm instructed that on this day both had been drinking alcohol during the course of the day and that had been since early afternoon. He had been drinking cans of beer, she had been drinking wine from a cask. During the afternoon they argued, they verbally attacked each other.
They were, in effect, pushing each other's buttons and the complainant indicated that she was intending to return home to Western Australia to her former boyfriend. Regrettably both continued to drink alcohol. Things quietened down and then an argument arose over the contents of the evening meal.
I'm instructed that the complainant went to their bedroom. She located some items belonging to the defendant's former partner and proceeded to break them. In a tit for tat episode, the defendant grabbed the complainant's mother's teapot to break that. The complainant tried to grab it off the defendant and he struck the defendant with it.
During that struggle, I'm instructed that the complainant bit the defendant's right ear forcefully. He pushed her away with force. It's accepted that that force was excessive in the circumstances. It caused her to go backwards where she ended on the floor and Mr Parker believes that she hit the back of her head on some nearby chest of drawers. He instructs that the complainant got up under her own steam and walked out of the house to go to a nearby friend's house. She walked down the driveway to the front gate. It being in the country, it was pitch black dark, she didn't have a torch. It appears that she has tripped or fallen over in the driveway. The defendant heard a voice, he saw a body shape on the ground near the front gate, he walked towards that person and found that it was the complainant. He tried to assist her to her feet but he wasn't able to do so. He ran to the house and dialled triple zero, he grabbed a blanket and a pillow to comfort her. He then ran to a neighbour's nearby property along with Jodie Williams to get help and that she came up to assist and the defendant got more blankets."
The difference between the two versions is obvious and is, on the face of it, relevant to the objective gravity of the assaults and the appellant's culpability. The Crown facts asserted that the complainant, after being hit on the head by the appellant in one room, went to the bedroom to get away from him. After a lapse of time, the appellant followed, going in and out a number of times, before finally pushing his way in against the complainant's resistance. He told her he wanted to get her out of his house, and then pushed her causing her to fall backwards against the bed. When she got up, he shoved her again. Conversely, on the appellant's version, all of the confrontation took place in the bedroom in the course of a single incident, only after the complainant started breaking items of sentimental value to the appellant. The appellant claimed that he pushed her over in response to being bitten on the ear during a struggle over the teapot. His counsel submitted to the sentencing judge that after the appellant's ear was bitten he "pushed her away with force. It's accepted that that force was excessive in the circumstances." That submission infers that the application of some force to the complainant was justified in defence of himself, but that the amount of force he used was excessive.
It seems that the sentencing judge either did not realise, or ignored, the inconsistencies between the respective versions. Reading the whole of the transcript of the sentencing proceedings, it is easy to see how the significance of the difference may have been missed. In R v Palu [2002] NSWCCA 381, 134 A Crim R 174, Howie J (with whom Levine and Hidden JJ agreed) stated at [21]:
"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 v DPP (1992) 28 NSWLR 593 at 604-608."
Counsel for the appellant did not expressly challenge or dispute the version asserted by the Crown. Counsel for the Crown said nothing which indicated either acceptance of or challenge to the assertions of fact made by the appellant. Both counsel simply stated the respective versions. No reference was made during the sentencing hearing to any factual difference and no-one drew his Honour's attention to any dispute. At the conclusion of the plea in mitigation no opportunity was offered by the sentencing judge for counsel for the Crown to respond to or dispute the factual assertions made by counsel for the appellant. His Honour announced that he would proceed to sentence a week later and then did so on 28 November 2018 without any further issue having been raised in the meantime. When sentencing, his Honour referred to the appellant's contentions about the complainant's intoxication. However, it is apparent from his Honour's remarks that he otherwise imposed sentence substantially on the factual basis asserted by the Crown. His Honour said:
"On the night in question, the couple argued. Mr Parker had been drinking all day and was intoxicated. His counsel told me that the complainant had also been drinking through the day, and that she was also intoxicated. That was not disputed by the Crown. The argument escalated. Mr Parker picked up a teapot that had belonged to the complainant's mother, intending to break it. She went to grab it from him. He reacted by hitting her over the head with it. That was the first assault.
The complainant at that stage tried to end the argument. She went to the bedroom, and commenced to get ready to go to bed for the night. Mr Parker came and went from the bedroom a number of times, abusing the complainant. She tried to shut the bedroom door, but he pushed his way into the room. He told her that he wanted her to get out of his house. She said she was not going anywhere at that time of night. He then pushed her backwards, causing her to fall. She fell backwards against the bed, and slid to the floor, but got up again. Mr Parker pushed her over again. She again fell to the floor. At that stage her hysterectomy wound split open, and her bowel commenced to protrude through the open wound. She ran outside, and fell to the ground on the driveway. She lost and regained consciousness a number of times."
A judge is not obliged to accept facts urged from the bar table even if they may be agreed: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 per Kirby P at 606; R v Uzabeaga [2000] NSWCCA 381, 199 A Crim R 452 per Bell J at [34]. A judge's sentencing discretion must be exercised in the public interest. Nor is a judge obliged to act on facts advanced by the Crown or a defendant, even if those facts are not challenged. It is for the judge to determine the sentence to be imposed. Where, however, a judge is minded to sentence on a different basis, the obligation to extend procedural fairness requires notice to an offender so as to enable him or her an opportunity to deal with the matter by evidence or submissions: O'Neil-Shaw v The Queen [2010] NSWCCA 42. In DL v The Queen [2018] HCA 32, 358 ALR 666, the High Court confirmed the need for procedural fairness in determination of facts relevant to sentence, albeit in a slightly different context.
Where facts are not agreed following the making of a plea of guilty, and there is conflict between facts asserted by the Crown and facts asserted by the defendant, if the facts have the capacity to affect the sentence, evidence should in the usual case be required by the judge to enable resolution of the conflict: Marlow v The Queen at 8. The decision of this Court in Smith v The Queen Serial No 48/1979, [1979] Tas R 311 (NC 13) concerned facts which had been stated by prosecuting counsel as part of the circumstances of the crime at the time of its commission. The prosecution version of an assault on a police officer included that the accused tried to escape and struggled with the police officer. Those matters were disputed by counsel for the accused. At 6 of the unreported judgment of the Court of Criminal Appeal, the Court referred to the now repealed provision in the Criminal Code, s 386(10), also dealt with in Marlow, which provided that if a convicted person challenges the truth of any information received under subs (7) "the judge may require that information to be proved in like manner as if it were to be received at a trial". The appeal against sentence by the convicted person succeeded because the sentencing judge had not resolved the conflicts of fact which had emerged. The Court stated as to s 386(10):
"Clearly, [it] envisages taking evidence on oath and making findings of fact. If the judge does not follow that procedure, as he is not bound to do, s 386 does not indicate his proper course, but it is clear law that … if material proffered by the Crown is challenged by the defence it must be ignored unless proved by evidence – Thomson v The Queen [1973] Tas SR 78; Nash v Haas [1972] Tas SR 1."
Although s 386(10) of the Code is now repealed, the position is no different under the current provision in the Sentencing Act 1997, s 81, which is entitled "Court may receive information before sentencing" and provides:
"(1) Before a court passes sentence on an offender found guilty of an offence, it may receive such information, in oral or documentary form, as it thinks fit and in so doing it is not bound by the rules of evidence.
(2) The court must ensure that the offender has knowledge of, and the opportunity to challenge, the information received by the court under subsection (1).
(3) Subsection (2) does not apply to information furnished by a medical practitioner that the court considers should not, in the interests of the offender, be disclosed to the offender.
(4) If the offender challenges the truth of any information received by the court under subsection (1), the court may require that information to be proved in like manner as if it were to be received at a trial."
Since R v Olbrich, questions about the onus of and standard of proof to be applied in fact finding for sentencing have been established. Earlier Tasmanian authorities must now be viewed in light of that decision. However it seems to me to have always been the case in this State that controverted facts asserted by the Crown which are adverse to a defendant must be proved by the prosecution beyond reasonable doubt: see also the judgment of Nettlefold J in Dale v Peterson Serial No 64/1972.
Here, facts were not agreed. The facts asserted by the Crown involved a higher degree of objective seriousness and criminal culpability than those asserted by the appellant. In my view it is quite clear that the appellant did challenge the truth of the information received by the sentencing court within the meaning of s 81(4). The challenge was not express, but counsel for the appellant gave a different version of the facts more favourable to him than the one earlier advanced by the Crown. As is pointed out by Professor Warner in Sentencing in Tasmania, 2nd ed (2002) at par 2.306, a judge need not act to resolve disputed facts which are unimportant or incapable of influencing the sentence one way or the other. For example, in R v Olbrich, the High Court found at [18] that "inquiring about what was done or intended by a person who imported drugs into Australia (apart, that is, from the acts which constitute the importation) will not always be relevant to sentencing that offender for the crime of importation". In this case, it is impossible to know the extent to which the sentence imposed by the sentencing judge would have been reduced, if at all, if the learned judge had imposed sentence on the factual basis asserted by the appellant. However, the difference had the capacity to affect the outcome in a significant way and, to borrow and modify the words used by Crawford CJ in Roberts v State of Tasmania [2011] TASCCA 2 at [5], the judge had a clear duty to identify the dispute and inquire of counsel what the parties wanted to do about resolving it. If the Crown sought to have the appellant sentenced upon the more serious basis it advanced, and the appellant did not accept that version of the events, the Crown would have had to support its version of the facts with evidence and prove that version beyond reasonable doubt in accordance with R v Olbrich (above). It might be that some of the facts advanced by the appellant, for example the breaking of items by the complainant and the bite, are more correctly regarded as amounting to an assertion of provocation as a mitigating circumstance favourable to him: Filippou v The Queen (above) at [66]-[68]. If contested by the Crown or the court, there should have been an opportunity offered to him to establish those facts on the balance of probabilities. To proceed to sentence on the facts asserted by the Crown without taking that course or allowing that opportunity was unfair to the appellant: O'Neil-Shaw v The Queen (above).
Disposition of the appeal
For those reasons, the exercise of the sentencing discretion miscarried. The first additional ground of appeal is expressed in terms that the sentencing judge made "factual findings." In the normal course, facts are not "found" in the absence of evidence. His Honour did not make findings in that sense. However, to the extent that his Honour imposed sentence on the basis of disputed facts, that ground should succeed. This appeal is to be determined on the basis of the Code, s 402(1). That provision is not confined to appeals against conviction: Plumstead v The Queen (1997) 7 Tas R 206 at 209-210; S v Tasmania [2007] TASSC 62, 16 Tas R 292. Error within the sense explained in the first limb of House v the King (1936) 55 CLR 499 at 504-505, as explained in the joint reasons in Kentwell v The Queen [2014] HCA 37, 252 CLR 601 at [42], is demonstrated, although, for present purposes, it matters not whether the flaw in the sentencing procedure I have described is characterised as material error or having resulted in a miscarriage of justice. See the recent discussion of material error in the reasons of Porter AJ in Jenkins v Tasmania [2019] TASCCA 12 at [120]-[140]. The approach to be adopted where a miscarriage of justice is established in the sentencing process is the same as that which is adopted when a material error has been established: S v Tasmania per Evans J at [20] and S v Tasmania (No 2) [2007] TASSC 85, 16 Tas R 449 at [5]. The requirement to "resentence" under s 402(4) is subject to the statutory exception provided for in s 402(4C), which provides that this Court may, if it thinks that it is appropriate and in the interests of justice to do so, quash the sentence passed at the trial and remit the matter to the court of trial. The term "court of trial" includes the court which has passed sentence upon a plea of guilty: the Code, s 399.
It is not possible for this Court to re-sentence the respondent. There are disputes about facts capable of influencing the sentence which remain undetermined. No assessment of the remaining grounds of appeal asserting that the sentence is manifestly excessive can be undertaken until the proper factual basis of sentence is determined. It would be contrary to justice to sentence the appellant on a factual basis different than that applied by the sentencing judge without permitting the Crown the opportunity to adduce evidence, if the matter cannot be resolved by agreement. The resolution of the disputed factual basis for sentence should not be undertaken by this Court. I would quash the sentence and remit the matter to the sentencing court for re-sentence following resolution of the factual basis of sentence either by agreement or evidence. The only question is whether the matter should be remitted to the same judge or to a different judge. Counsel for the appellant submits that because the sentencing judge has already expressed a view about sentence, a fair-minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the re-sentencing process. I do not agree. I see no reason to conclude that a fair minded observer would reasonably apprehend that a senior and experienced judicial officer would fail to bring the required intellectual rigour to the re-sentencing process. His Honour has not undertaken any process which involves acceptance or rejection of the evidence of a witness.
Disposition and orders
I would allow the appeal, quash the sentence imposed by the sentencing judge on 28 November 2018, and remit the matter to the learned sentencing judge for re-sentence in accordance with these reasons.
File No CCA 3282/2018
LEIGH JOHN PARKER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
8 October 2019
This appeal should succeed for the reasons that follow.
Pearce J has set out the grounds of appeal and the factual history.
A plea of guilty is an admission to the essential legal ingredients of the offence and not more: R v Riley (1896) 1 QB 309; GAS v The Queen [2004] HCA 22, 217 CLR 198 at 30.
The facts beyond those necessarily admitted upon the plea of guilty, must be proved by evidence. That evidence can be admitted formally: s 4(2) of the Evidence Act 2001, or informally. In this State it is common for the facts to be presented informally in accordance with the procedure in s 81 of the Sentencing Act 1997.
That involves the Crown presenting a statement of facts to the court.
Usually that statement of facts will have been discussed between counsel beforehand. Matters of difference in the facts are frequently resolved at this stage. But that is not always so. When they are not the court must ensure that the offender knows of and has the opportunity to challenge the information proffered by the Crown: s 81(2) of the Sentencing Act.
When a statement of facts is presented it is incumbent upon counsel to identify for the court the points of difference having carefully checked the facts intended to be presented by the Crown; R v Crowley [2004] NSWCCA 256 at 46 per Smart AJ. This will assist the court to identify the issues required to be resolved before a sentence can be imposed.
The facts presented should be sufficiently comprehensive to enable the court to identify the circumstances of the offending and the culpability of the offender: R v Della-Vedova [2009] NSWCCA 107 at 14. A judge's conclusions about what an offender did will be very important matters in deciding "what type of penalty will be exacted" and "how large that penalty should be": R v Olbrich [1999] HCA 54, 199 CLR 270. Those conclusions are relevant to the assessment of the objective seriousness of the offending, and thus the culpability of the appellant. The culpability of the appellant is a relevant sentencing consideration: Markarian v The Queen [2005] HCA 25, (2006) 228 CLR 357; Wong v The Queen [2001] HCA 64, 207 CLR 584; Veen (No 2) (1988) 164 CLR 465.
All of this amounts to saying that to determine the sentence which is to be imposed, the judge must find the relevant facts: GAS (above) at 30.
Errors in sentencing can manifest themselves in different ways. The first is an error in respect of a material fact. This sort of error may occur as a result of a wrong approach to the fact finding: having regard to irrelevant matters, ignoring facts, misconceiving facts or misstating them. In such cases, the court is dealing with specific error, the first category identified in House v The King (1936) 55 CLR 499 at 504-505.
In these types of case the court engages with the fact finding task, makes findings of fact, but errs in relation to one or more of those facts, one of which is material to sentence: see for example Turnbull v The Queen [2019] NSWCCA 97 at [38] per Simpson AJA.
The second is failing to undertake the fact-finding task at all. This also amounts to specific error within the first category identified in House (above). In this scenario, sentencing occurs on a wrong basis because the Court has not involved itself in determining the facts relevant to the exercise of its sentencing discretion. This results in a failure to make an assessment of the objective seriousness of the offending, and thus the culpability of the appellant, contrary to the principles referred to in GAS (above).
In each of these situations, the sentencing discretion miscarries. In obedience to Kentwell [2014] HCA 37, 252 CLR 601 at [42] upon such material error being exposed, the court does not enquire into the effect of such error: the sentencing discretion has miscarried and the court exercises the sentencing discretion afresh. It is not a matter of adjusting the sentence actually passed: Kenwtell (above) at [40]; Baxter v The Queen [2007] NSWCCA 237,173 A Crim R 284 per Spigelman CJ at [19].
There is a third scenario. That is that findings of fact are made but not exposed by the court in its remarks on sentencing. The appropriate disposition of the matter in such case, is to remit the matter to the sentencing judge with a direction that he disclose his findings: P v Tasmania [2005] TASSC 107; DPP v Harwood [2019] TASCCA 2.
If that occurred here, which I doubt, a further error emerges: the adoption of the State's version of the facts without notice to the appellant that his version had been rejected, or at least would not be acted upon. Such notice is required as a matter of procedural fairness: O'Neil-Shaw v The Queen [2010] NSWCCA 42 at [26].
In this case the Court was presented with competing versions of the factual matters comprising the events the subject of the charges. The differences were material to the assessment of the objective seriousness of the offending, and thus went to matters material to sentence.
In accordance with the authorities to which I have referred, the Court was required to make findings as between the versions of the facts which were put. (I interpret "finding" in that sense to mean no more than the result of the choice made between competing versions of events, the foundation of which is the acceptance or rejection of facts according to the judgment of the court. That process is required to be exposed and explained by reasons). There is nothing in Blow CJ's sentencing remarks which is indicative of the court having an appreciation of the factual differences advanced in the versions put to the Court. Unsurprisingly therefore, nothing appears in those remarks which exposes the Court's findings of fact, or its reasons for choosing one version of the facts over another.
This amounts to legal error. Error having been demonstrated, the sentence cannot stand.
In these circumstances, the Court can exercise the discretion afresh: s 402(4) of the Criminal Code.
Section 402(4C) of the Code provides an alternative course. It says that if the court is satisfied that it is appropriate and in the interests of justice to do so, it may remit the matter to the sentencing court. It is convenient to remit the matter, but that is not the criteria. For this Court to be satisfied that it is appropriate and in the interests of justice a positive state of satisfaction to that effect is required. That is not the same as a conclusion that it is not inappropriate and not contrary to the interests of justice to remit the matter. Nothing has been identified by counsel as providing a basis for a conclusion that remittal is appropriate in the interests of justice. However, if this Court assumes for itself the task of resentencing it will be necessary to reconvene. That is likely to lead to delay in resentencing. Delay is contrary to the interests of justice. On that basis the second limb of s 402(4C) is satisfied.
Is it "appropriate"? The appellant has raised the issue of apprehended bias as the basis for submitting such course is not appropriate.
When apprehended bias is raised, the question is whether a fair-minded lay observer might reasonably apprehend that the decision maker will not bring an impartial mind to the resolution of the matters required to be determined on re-sentencing: Gascor v Ellicott (1997) 1 VR 322. What is required to be shown is that in the eyes of that fair-minded lay observer there is the appearance of pre-judgment because the sentencing judge has already embarked upon a consideration of the appellant's culpability and the circumstances suggest that his judgment is incapable of being swayed by evidence or argument: Minister for Immigration and Multi-cultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 at 71-72.
In my view, it cannot be said that there are any circumstances which suggest that the sentencing judge is incapable of being swayed by evidence or argument. Accordingly there is no basis for concluding the matter should not be remitted to Blow CJ.
I would uphold the appeal. I would quash the sentence, and remit the matter to Blow CJ for sentencing.
File No 3282/2018
LEIGH JOHN PARKER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
8 October 2019
The appellant appealed against the sentence imposed on him by Blow CJ on 28 November 2018 upon the ground that the sentence was manifestly excessive. The appellant pleaded guilty to two counts of assault, contrary to s 184 of the Criminal Code. He was sentenced to four years three months' imprisonment effective from 27 August 2018, and it was ordered that he not be eligible for parole until he had served two years and nine months.
The original notice of appeal relied on the single ground that the learned sentencing judge had erred in law by imposing a sentence that was manifestly excessive in all the circumstances. The notice of appeal was subsequently amended to add two further grounds. They were:
"1 The learned sentencing judge erred by making factual findings, inconsistent with the unchallenged assertions of fact by [the] Defence.
2 The findings of fact were objectively more serious, than those asserted by [the] Defence, and led to the imposition of a sentence that was manifestly excessive."
At the sentencing hearing, the Crown tendered a document entitled, "Crown Statement of Facts". Counsel for the appellant made oral submissions on the plea in mitigation of sentence. Some of those oral submissions put a different slant on critical parts of the Crown statement of facts.
The most glaring conflict between what appears in the Crown statement of facts and the plea in mitigation concerned the background facts as to what preceded the first assault. Paragraph 5 of the Crown statement of facts said:
"5 On the night of the 27th of September 2017 the complainant and the accused were at home. The accused had been drinking beer since 10.30am and was intoxicated. An argument developed between them, and the accused kept making comments about his previous relationships. At some stage the accused threw out some meat that the complainant had planned to cook."
Paragraph 6 of the Crown statement of facts said:
"6During the course of the argument the accused picked up a teapot, which had belonged to the complainant's mother, and hit the complainant over the head with it."
Counsel for the appellant told the sentencing judge that both the appellant and the complainant had been drinking alcohol and that they were "pushing each other's buttons". Counsel said the complainant went to the bedroom, located some items belonging to the former partner of the appellant, and broke them. In response, the appellant grabbed the complainant's mother's teapot and began to break it. The complainant tried to take the teapot from the appellant. He then struck her with it and during that struggle the complainant bit the appellant's ear forcefully.
In his comments on passing sentence, the sentencing judge, apart from a reference to the complainant having been drinking through the day, relied on the Crown statement of facts in describing the assault with a teapot. There is no mention of the complainant breaking items belonging to the appellant's former partner, nor any mention of the complainant forcefully biting the ear of the appellant.
Before his Honour neither counsel raised any issue about the inherent conflict between the Crown statement of facts and the plea in mitigation made by defence counsel. This was plainly unsatisfactory. Consideration ought to have been given as to whether a disputed facts hearing was required.
A plea of guilty is only an admission to the critical elements of the crime. Surrounding circumstances may be taken into account in determining an appropriate penalty. Those circumstances required proof, either by agreement or resolution of disputed facts. Although the State may wish to rely on a Crown statement of facts, it is open to the defence to prove any other facts relevant to sentence. This may be done during a plea in mitigation.
Facts adverse to the interests of an accused must be established beyond reasonable doubt. Facts in favour of the accused are required to be established on the balance of probabilities. See R v Olbrich [1999] HCA 54, 199 CLR 270 at [27].
In this matter facts in favour of the accused which went to the seriousness of the offending concerning the "teapot assault" were not referred to by the sentencing judge, save for the reference to the complainant's drinking. Those facts were not challenged or disputed by the prosecution. The sentencing judge was not entitled to disregard them without proper notice to the appellant that he intended to do so: O'Neil-Shaw v The Queen [2010] NSWCCA 42 at [26].
For the reasons given by Pearce J, it is appropriate to allow the appeal and remit the matter to the sentencing judge. It is also appropriate to order that the appellant be remanded in custody in the interim.
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