R v Bennett

[2006] VSCA 274

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 91 of 2006

THE QUEEN

v.

WILLIAM PAUL BENNETT

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JUDGES:	WARREN, C.J. and NETTLE and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2006
DATE OF JUDGMENT:	6 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 274

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CRIMINAL LAW – Sentencing – Sentencing judge adjourned the plea in order to obtain a psychiatric report – Appellant sentenced without further plea hearing – Denial of natural justice - Failure to allow parties to make submissions regarding contents of report constituted sentencing error – Matter remitted to the County Court for sentencing following R v Roberts [2000] VSCA 46.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G.T. Cannon	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr P.S. Kilduff	Ronald V. Tait

WARREN, C.J.:

1. I invite Redlich, J.A. to deliver his reasons for judgment first.

REDLICH, J.A.: 

1. The appellant pleaded guilty to one count of aggravated burglary, one count of false imprisonment, one count of intentionally causing injury, one count of unlawful imprisonment and one count of breach of an intervention order, and was sentenced, on 25 November 2005 in the County Court, to a total effective sentence of four years and three months' imprisonment.  A minimum term was fixed of two years and nine months before the appellant would be eligible for parole.  In light of the grounds of appeal, it is unnecessary to recite the circumstances of the appellant's offending.

1. During the course of the plea in the County Court, his Honour interrupted the plea to ascertain from counsel for the appellant what disposition was being sought. It is clear from an exchange which then followed that his Honour did not accept the submission that a five-month pre-sentence detention would be an appropriate punishment having regard to the circumstances of the offending. His Honour indicated that he proposed to order a report pursuant to s.96(1) of the Sentencing Act 1991. Counsel for the appellant on the plea encouraged that course. It is conceded in the outlines of submissions of both parties that counsel for the appellant expected that the report, once it was obtained, would provide some useful insight into the causal basis of the appellant's offending. It is also clear that counsel for the appellant on the plea anticipated that after the report was obtained there would be a further plea hearing.

1. On the plea, counsel had drawn attention to the personal circumstances of the appellant and the disputed history of events between the appellant and the victim.  In particular, reference had been made to earlier family violence and other abuse suffered by the appellant in his youth.  It was for that reason that the judge indicated that a psychiatric report would be useful.  Once the report was obtained, it appears that it was not provided to counsel for the appellant.  His Honour, upon resuming the hearing, immediately proceeded to sentence the appellant.  During the sentencing remarks, the learned sentencing judge read out large portions of the report into his reasons, but ultimately disagreed with the essential conclusion contained within the report that a community-based sentence would be of value. 

1. As can be seen from the appellant's Full Statement of Grounds that particularised the sentencing process adopted by the learned sentencing judge, the course followed by his Honour was in breach of the audi alteram partem rule.  The learned sentencing judge did not give counsel an opportunity to address the issues raised in the report or to make submissions as to what sentence should be imposed in light of the content of the report. 

1. It is conceded by counsel for the respondent that, in those circumstances, the appellant was denied procedural fairness such as to vitiate the sentencing discretion.  On the basis that clear error has been demonstrated, the only matter which has been raised in oral argument this morning is whether or not this Court should proceed to re-sentence the appellant or whether the matter should be remitted to the County Court for further hearing and a re-sentencing of the appellant.

1. The respondent, in its outline of submissions to this Court, has submitted that, if the Court proceeds under s.468(4) of the Crimes Act 1958 to re-sentence, the same total effective sentence and non-parole period should be imposed. In my view, it is neither appropriate nor conducive to consistency for this Court to undertake the process of re-sentencing the appellant in light of the circumstances which gave rise to error. In the decision of R v Roberts,[1] this Court held, in circumstances similar to those to which I have referred in the present case, that the appropriate course is to remit the matter for sentence to the County Court.  There being no sound basis for distinguishing the approach adopted on that occasion from the present circumstances, in my view we should adopt the same approach.

WARREN, C.J.: 

[1][2000] VSCA 46.

1. I agree with the reasons stated by Redlich, J.A.  I would add that the circumstances of the conduct and hearing of the plea and the eventual sentence of the appellant without the sentencing judge providing counsel for the appellant with an opportunity to make further submissions on the plea was entirely inappropriate.  As Redlich, J.A. has highlighted, it was apparent that counsel on both sides left the court with an expectation, after the first hearing, that there would be a further opportunity for submissions.  So much was apparent, furthermore, by the calling of the sentencing judge for a psychiatric report.  The circumstances of the sentencing of the appellant were compounded and exacerbated by the recommendation contained in the psychiatric report of a non-custodial order.  As is apparent from the reasons of the sentencing judge, his Honour disregarded or discounted the recommendations contained in the psychiatric report and adopted a different course.  As a matter of fundamental procedural fairness, the appellant ought have been given the opportunity to make further submissions on that matter alone.

1. In all the circumstances, as already indicated, I agree with the disposition proposed by Redlich, J.A.

NETTLE, J.A.:

1. I agree. It is surprising and regrettable that a judge of the County Court should receive and act upon a pre-sentence report without affording an opportunity to those to whom it relates to consider it and make submissions upon it. Section 98(2)(b) of the Sentencing Act 1991 requires that a report be provided to legal representatives, and s.99 of the same Act permits the representatives to challenge any finding which is made in the report. It is unfortunate that those provisions were overlooked.

WARREN, C.J.: 

1. The orders of the Court are as follows:

1.        The appeal is allowed.

2.        The sentences of imprisonment below are quashed.

3.        The re-sentence of the appellant is remitted to the County Court for hearing and determination by a different judge to the judge at first instance.

The Court further directs that a certificate be issued in this matter to the appellant.

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