R v Capaldo
[2015] SASCFC 56
•28 April 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CAPALDO
[2015] SASCFC 56
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kelly)
28 April 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - ROLE OF GUILTY PLEA OR DEPOSITIONS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS
Application for permission to appeal against sentence. Following a search at residential premises, police seized a loaded Glock branded semi-automatic pistol which was found locked in a shed. The serial numbers on the firearm had been removed. Five days later, the appellant presented at a police station with her solicitor and provided a written statement to police. She pleaded guilty in the Magistrates Court at her first appearance to aggravated possession of a class H firearm while not holding a licence, possession of a class H firearm with defaced, altered or removed characters, failing to keep a class H firearm secured and failing to store ammunition in a locked container separately from the firearm. The defendant was sentenced by a Judge of the District Court following a disputed facts hearing to a period of imprisonment of one year and six months with a non-parole period of five months. On appeal, the head sentence was not challenged, the only issue was whether the sentence should be suspended.
Whether the Judge’s conduct gave rise to an apprehension of bias. Whether the Judge’s discretion not to suspend the sentence miscarried. Whether to suspend the sentence.
Held per Gray and Sulan JJ (granting permission to appeal and allowing the appeal):
1. It is usually for the advocates and not a judge to examine the witnesses to avoid the risk that a judge will appear to favour a party. The role of a judge is to listen to the evidence, asking questions when it is necessary to clear up a point overlooked or left obscure. If a judge goes beyond this, the mantle of a judge is dropped and the role of an advocate is assumed.
2. The Judge’s questioning of counsel for the appellant was inappropriate.
3. Much of the Judge’s questioning of the appellant involved extensive cross-examination. A review of the transcript reveals that the Judge took over.
4. The Judge demonstrated pre-judgment which became manifest in the sentencing remarks.
5. The Judge’s conduct gave rise to an appearance of bias.
6. The Judge erred in her treatment of the circumstances of the appellant providing a written statement to the police. The Judge formed an early opinion that the appellant’s account was a contrivance. There was no basis for this opinion. It follows that the Judge sentenced on a misunderstanding of fact and on a matter on which it may be inferred that the Judge was highly critical of the defendant.
7. The defendant’s possession of the firearm is a matter of serious concern. A sentence of imprisonment, even for a first offender, was appropriate. In this way, the need for general deterrence is addressed.
8. Only in the most exceptional circumstances would a penalty other than imprisonment be justified for offending of this kind.
9. The Sentencing Act recognises the utilitarian value to be placed upon a plea of guilty. The question of whether the plea demonstrates genuine contrition on the part of a defendant is of a lesser consideration than it might have been prior to the enactment of section 10C. Parliament has provided that a plea of guilty at an early stage entitles a defendant to seek a substantial reduction of a sentence on the basis that the plea has saved the community expense.
10. A purpose of the Sentencing Act is to make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early. To encourage early guilty pleas there must be a degree of certainty that offenders can be confident that, if they plead guilty at the first opportunity, their sentence is likely to be discounted substantially. Where there are no circumstances of aggravation, a plea of guilty at the first opportunity should result in a discount of about 40 per cent.
11. The head sentence imposed by the judge was merciful in all the circumstances and should not be interfered with.
12. The exercise of the Judge’s discretion to decline to suspend the sentence miscarried. The defendant’s mental state at the time of the offending and her personal circumstances are powerful mitigating factors to be taken into account when considering whether to suspend the term of imprisonment.
13. Allowing for time spent in custody, the appellant is resentenced to 17 months’ imprisonment with a non-parole period of four months, wholly suspended upon entry into a supervised bond to be of good behaviour for three years.
Per Kelly J (granting permission to appeal and allowing the appeal):
1. The sentencing process miscarried by virtue of the Judge’s conduct during the disputed fact hearing, which gave rise to an impression of bias.
2. This Court’s decision to overturn the orders made by the Judge means that the factual basis for resentencing is unsettled. This Court is not in a position to assess the appellant’s credit and make any findings on the issue of the appellant’s reason for possessing the firearm.
3. The matter should be remitted to the District Court for hearing before another Judge.
Firearms Act 1977 (SA) s 11(1), s 24A(7)(b); Firearms Regulations 2008 (SA) s 38 and s 41(1); Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 18A and s 38; Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 (SA), referred to.
Yuill v Yuill [1945] P 15; Ratten v The Queen (1974) 131 CLR 510; Galea v Galea (1990) 19 NSWLR 263; R v Lars (1994) 73 A Crim R 91; Siganto v The Queen (1998) 194 CLR 656; R v MacBeth [2008] SASC 71; R v Mohammadi (2011) 112 SASR 17; R v T, WA (2014) 118 SASR 382; R v Mawson [1967] VR 205; R v Baltensperger [2006] SASC 246; Cameron v The Queen (2002) 209 CLR 339; R v Daniele [2014] SASCFC 22, considered.
R v CAPALDO
[2015] SASCFC 56Court of Criminal Appeal: Gray, Sulan and Kelly JJ
GRAY and SULAN JJ.
This is an application for permission to appeal against sentence.
On 8 August 2014, the defendant and appellant, Loren Capaldo, pleaded guilty at her first appearance in the Magistrates Court to the following offences:
-Aggravated possession of a class H firearm while not holding a licence authorising possession of that firearm pursuant to section 11(1) of the Firearms Act 1977 (SA). The circumstance of aggravation was that the firearm was loaded. The maximum penalty for this offence is a fine of $50,000.00 or imprisonment for ten years.
-Possession of a class H firearm with defaced, altered or removed characters pursuant to section 24A(7)(b) of the Firearms Act. The maximum penalty for this offence is a fine of $35,000.00 or seven years’ imprisonment.
-Failing to keep a class H firearm secured in accordance with regulation 38(2) of the Firearms Regulations 2008 (SA). The maximum penalty for this offence is a fine of $2,500.00.
-Failing to store ammunition in a locked container separately from the firearm pursuant to regulation 41(1) of the Firearms Regulations. The maximum penalty for this offence is a fine of $2,500.00.
On that occasion, the Magistrate noted that the defendant conceded that there was a case to answer and entered her pleas without any declarations being provided. The Magistrate committed the defendant for sentence in the District Court of South Australia.
On 24 February 2015, a Judge of the District Court imposed the following sentences:
-In respect of the charges of failing to properly store the firearm and failing to properly secure ammunition, the defendant was convicted without further penalty.
-In respect of the aggravated possession of a firearm and possession of a firearm with defaced characters, the Judge imposed one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988. A discount of 25 per cent was given for the plea of guilty. The defendant was sentenced to a head sentence of one year and six months’ imprisonment with a non-parole period of five months.
Background
On 5 June 2014, police searched residential premises at Underdale. No resident of that premises was present at the time of the search. Police located a loaded, semi-automatic, Glock branded handgun in a garage on the property. The serial number on the firearm had been obliterated. The garage door was locked with a padlock at the time of the search. The firearm was stored in a picnic style bag in a loft inside the garage. The loft area could only be reached by climbing on furniture stored in the garage. There was no ladder or direct access to the loft.
On 10 June 2014, the defendant attended at the Adelaide Police Station with her solicitor. She provided police with a prepared, signed statement:
...
There have been no promises, threats or inducements held out to me to make this statement.
The police located a Glock handgun at my premises on 5 June 2014, in the locked shed.
The firearm was mine. I had obtained that handgun for protection. My ex-partner, Michael Rawson, has been extremely violent towards me. There have been a number of restraint orders against him. I was concerned that he would carry out his threats to kill me, my family and family members.
I obtained the firearm at approximately Easter 2013. I was the only person with a key to the shed.
The gun has never been fired while it has been in my possession.
This statement is true and accurate to the best of my knowledge.
...
The defendant did not in that statement provide any further details about how she came into possession of the firearm. The police did not seek to interview the defendant on this occasion or on any later occasion.
A body of evidence concerning Mr Rawson, and in particular his abuse and violence toward the defendant, was before the Judge. This material included the offender history details from police records and six police incident reports concerning incidents of domestic violence. In each case, the defendant was identified in the report as the victim and Mr Rawson as the perpetrator.
The Appeal
On the appeal, counsel for the defendant accepted that the defendant’s offending was serious and acknowledged that it was important that the sentence properly reflected the need for deterrence. It was acknowledged that, notwithstanding that it was the defendant’s first offence, it was appropriate to order a term of imprisonment. There was no complaint about the term of imprisonment or the non-parole period that the Judge fixed. However, it was submitted that the Judge erred in exercising her discretion not to suspend the sentence. It was contended that there were demonstrable errors in the sentencing process. It was further submitted that the Judge’s conduct during sentencing submissions and during the taking of evidence demonstrated pre-judgment and an appearance of bias. It was said that these matters provide an explanation for the errors that were said to have occurred.
Pre-Judgment and Bias – General Principles
The role of a Judge in legal proceedings is largely governed by two interrelated rights, each derived from the common law system of an adversarial trial. The first is that the parties have the right to have their trial presided over by an independent and impartial judge. The second is that the parties are entitled to present their respective cases as they see fit. Both rights are aspects of the fundamental requirement of procedural fairness, the former comprising part of the rule against bias and the latter comprising part of the hearing rule.
Many authorities have addressed the question of undue interference by a judicial officer in the process of a criminal trial. It is convenient to start with the observations of Lord Greene MR in Yuill v Yuill:[1]
… A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue. …
[Emphasis added.]
[1] Yuill v Yuill [1945] P 15, 20.
It is also relevant to refer to the judgment of Denning LJ in Jones v National Coal Board:[2]
… In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question “How's that?” His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon L.C. who said in a notable passage that “truth is best discovered by powerful “statements on both sides of the question” ? : see Ex parte Lloyd. And Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and “is liable to have his vision clouded by the dust of conflict”: see Yuill v Yuill.
Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales—the “nicely calculated less or more”—but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties: see In re Enoch & Zaretzky, Bock & Co. So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other: see Rex v Cain, Rex v Bateman, and Harris v Harris, by Birkett L.J. especially. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see Reg v Clewer. The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: “Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.”
Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, our keenness may outrun our sureness, and we may trip and fall. That is what has happened here. A judge of acute perception, acknowledged learning, and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties—nay, each of them—has come away complaining that he was not able properly to put his case; and these complaints are, we think justified.
[Footnotes omitted. Emphasis added.]
[2] Jones v National Coal Board (1957) 2 QB 55, 63-5.
In Ratten, Barwick CJ observed:[3]
As Smith J. rightly said in expressing the reasons of the Full Court in this case, "Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence". It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. …
[Footnote omitted. Emphasis added.]
[3] Ratten v The Queen (1974) 131 CLR 510, 517.
The authorities, including those referred to above, were considered in Esposito[4] by Wood CJ at CL. In MacBeth, Doyle CJ, writing for this Court, endorsed the relevant guidelines to be found in the reasons of Wood CJ at CL and, in particular, summarised the position as follows:[5]
The issue is whether the conduct of the Judge has given rise to a miscarriage of justice.
A trial Judge is entitled to question witnesses to clear up matters that are unclear, or might be unclear to the jury, or to satisfy the Judge on a matter that concerns the Judge. There might be other reasons for asking questions. Nevertheless, it is the role of counsel to present the evidence to the jury, and a trial Judge’s role in questioning witnesses is limited by that context. The Judge should not take the case (for the prosecution or for the defence) out of the hands of counsel. A judge should not get involved in questioning to such an extent that counsel, and in particular defence counsel, cannot fairly expose their case to the jury. It is not suggested that the Judge offended against this principle. Nor should a judge ask questions in a manner or to such an extent that might suggest to the jury that the judge is partisan, or has a definite view about the evidence of a witness. But even then, judicial intervention needs to be assessed in the context of the case as a whole. A judge’s questions might indicate or expose disbelief of something that is patently incredible, or might relate to something that has already been exposed as incredible. Finally, a judge must take care that in asking questions the judge does not identify the judge with the case of either party. …
[Emphasis added.]
[4] R v Esposito (1998) 45 NSWLR 442.
[5] R v MacBeth [2008] SASC 71, [72]-[73]; see also, R v Mohammadi (2011) 112 SASR 17.
More recently, in T, WA, Kouarkis CJ commented on the circumstances in which a judge’s intervention might be excessive and lead to a miscarriage of justice:[6]
[6] R v T, WA (2014) 118 SASR 382, [38]-[39].
I would state the grounds on which a judge’s intervention might vitiate a conviction a little differently, as follows:
(i) the questioning unfairly undermines the proper presentation of a party’s case (the disruption ground);
(ii) the questioning gives an appearance of bias (the bias ground); and
(iii) the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).
I prefer to state the dust of conflict ground in terms of compromising the capacity of the judge to adjudicate because an appeal court can never do anything more than speculate as to whether the judicial officer’s vision was in fact “clouded by the dust of conflict”. If the appeal court, on an appeal by way of rehearing, concludes that a judge’s findings were wrong in fact on the evidence, it may correct them without relying on the judge’s excessive judicial intervention. However, in those cases in which the facts, as found, were open to the trial judge, particularly given the judge’s advantage in assessing the credibility of the witnesses, it is impossible for an appeal court to say whether or not the judge’s finding in fact proceeded from a clouded, or clear headed, evaluation of the evidence. Moreover, because this ground, in effect, alleges an error of law which will generally result in a retrial irrespective of the appeal court’s view of the weight of the evidence, it is better based on an objective standard measured by an assessment of the degree to which the departure from a judge’s traditional role compromises the judicial capacity to objectively evaluate the evidence.
It is clear from these authorities that excessive intervention by a judge may constitute a miscarriage of justice if the judge’s conduct departs from the due and orderly processes of a fair trial.[7] The test to be applied is whether the excessive judicial questioning or pejorative comments created a real danger that the hearing was unfair.[8] The question is whether the defendant was denied a fair determination of the sentencing hearing because the Judge closed her mind to further persuasion and moved into the shoes of counsel, with the consequent risk of self-persuasion.[9]
[7] R v Mawson [1967] VR 205, 207.
[8] Galea v Galea (1990) 19 NSWLR 263, 281.
[9] Galea v Galea (1990) 19 NSWLR 263, 281.
The decision on whether the point of unfairness has been reached must be made in the context of the whole hearing and in light of the number, length, terms and circumstances of the interventions. These interventions may be characterised as:[10]
-interventions which are provisional and put forward to test the evidence and to invite further persuasion; or
-interventions which suggest that an opinion has been finally reached which could not be altered by further evidence or argument.
[10] Galea v Galea (1990) 19 NSWLR 263, 281.
It was the submission of counsel for the defendant that a judge is on thin ice when resorting to extensive questioning of a defendant to establish a point that is adverse to the interests of the defendant, rather than to elucidate an aspect that has been overlooked or left uncertain.[11] It was said that the task of destroying the credit of an accused or witness should be left by the judge to the prosecutor. Finally, counsel submitted that the departure from due and orderly processes may also infringe the principle that criminal justice must not only be done but must also appear to be done.
[11] R v Esposito (1998) 45 NSWLR 442, 472.
It is usually for the advocates and not a judge to examine the witnesses so as to avoid the risk that the judge will appear to favour a party. The role of a judge is to listen to the evidence, asking questions when it is necessary to clear up a point overlooked or left obscure. If a judge goes beyond this, the mantle of a judge is dropped and the role of an advocate is assumed.[12]
[12] R v Baltensperger [2006] SASC 246, [60].
Consideration
On 20 October 2014, when the matter came before the Judge, counsel appearing for the Director informed the Judge that the underlying factual basis for the plea was not disputed. The Judge raised with the defendant and prosecution concerns she had with the factual basis for the plea. The Judge indicated that she did not accept, in the absence of evidence, that the firearm was obtained for personal protection. The Judge also raised a concern she had about the expertise of the author of a psychological report tendered on behalf of the defendant and invited the defendant to obtain a fresh report. The matter was adjourned for a disputed facts hearing.
Sentencing submissions resumed on 10 December 2014. A report of Craig Raeside, a forensic psychiatrist, of 4 December 2014 was tendered by consent. A report of Alan Fugler, a psychologist, had also been tendered. Counsel for the Director confirmed that the Director did not dispute the factual basis upon which the defendant said she had a state of mind about being in fear of Mr Rawson. It is evident from the transcript of 20 October 2014 that the Judge was troubled by the fact that the defendant with her solicitor had gone to the police with a prepared statement. The Judge returned to this topic at the hearing on 10 December 2014 and made the following observation:
In this case, there is no evidence, no tested evidence at all from Ms Capaldo, other than the rather contrived situation of her walking into a police station with a solicitor’s letter saying ‘It was my gun and this is the explanation I give’ and not even answering police questions, let alone anyone else’s.
The defendant gave evidence in support of her asserted reason for having the gun. Her counsel was the subject of extensive interruptions by the Judge during his questioning. Much of the Judge’s questioning involved extensive cross-examination. A review of the transcript reveals that the Judge took over. On the topic of her attending at the police station and handing in a statement, the following interchange with the Judge occurred:
Q. Why were you not prepared to tell us before today.
A. The question was - it was asked in the courtroom.
Q. Yes.
A. But when I was arrested, I was not asked questions.
Q. I don't think that you were willing to answer questions, were you.
A. I wasn't asked.
Q.Why did you go into the police station with a statement in your hand, if you were willing to answer questions from the police.
A. To say that it was my gun. That's why I went there.
Q. You are saying that the police didn't want to ask you any questions.
A. It was never offered to me.
Q. Did you ever instruct your lawyers that you didn't want to speak to the police and answer their questions. Or don't you know.
A. Yeah, I can't remember if I told my lawyer that.
Q. Did you ever tell the police where you got that gun from.
A. No.
Q. Who is the first person you have ever told where you got that gun from.
A. The lawyer.
Q. Which lawyer.
A. My lawyer.
Q. Which lawyer are you talking about. Mr Caldicott.
A. Yes, Mr Caldicott.
Q. When was that.
A. When all this occurred when I was arrested for it.
Q.Within a day or so of your arrest you told Mr Caldicott where you got the gun from.
A. Not with a name but, yes, I said that I had -
Q.When did you first tell anyone about this person that you say gave you the gun, Mr Foster.
A. It was after the last court case.
Q. Why didn't you tell Mr Caldicott before then.
A. I didn't want to get Foster into trouble.
Q. He didn't seem to mind, did he.
A. I'm guessing he would mind if I got him into trouble.
Q. According to you he's never even said anything to you -
A. No.
Q. - about not saying where you got the gun from.
A. No, he hasn't.
Cross-examination by counsel for the Director was also the subject of extensive interruption by the Judge. The proceeding was adjourned while the defendant was under cross-examination.
The matter proceeded for further hearing on 28 January 2015. Cross-examination continued, again with extensive interruption by the Judge. Following the conclusion of the defendant’s evidence, sentencing submissions continued.
A complaint on appeal was that the Judge cross-examined the defendant extensively both during examination and cross-examination by counsel. It was said that the Judge went so far as to take over the role of counsel. It was contended that the Judge had inappropriately entered the arena. It was said that a review of the transcript disclosed that the Judge had a predisposition against the defendant and, in particular, her suggestion that she had obtained a gun for the purpose of self-defence. It was argued that the conduct of the Judge led her to adopt pre-conceived notions that the defendant’s claim to have acquired the gun for self-defence was unbelievable.
It should be pointed out immediately that the Director, although accepting that the Judge had intervened during the evidence to an extent that might be unexpected, contended that the Judge had not crossed the line, had not taken on the role of the prosecutor and had not entered the arena. The Director emphasised the fact that, during sentencing submissions, not one word of protest was raised by defence counsel about the Judge’s conduct.
The Judge when sentencing, having recounted the circumstances of the police search and finding of the gun, observed:
On 10 June 2014, the police were contacted by your solicitor. They were told that you would attend at the Adelaide Police Station where you were to be interviewed. I refer to the police declarations with respect to this issue. In fact, you did not and would not participate in a police interview but you provided a written statement to the police wherein you said that the firearm located inside the locked shed was yours and you also said the following:
I had obtained that handgun for protection. My ex-partner, Michael Rawson, has been extremely violent towards me. There have been a number of restraint orders against him. I was concerned that he would carry out his threats to kill me, my family and family members. I obtained a firearm at approximately Easter 2013. I was the only person with a key to the shed. The gun has never been fired while it has been in my possession. This statement is true and accurate to the best of my knowledge.
The Judge addressed the defendant’s evidence as follows:
You have given evidence on oath in respect of the matter. You have given evidence about the circumstances in which you say that you obtained the weapon as well as the details of your relationship with Mr Rawson. I do not accept your explanation as to the reason for the possession of the firearm either on the balance of probabilities or at all.
You gave evidence that you had been threatened and were the victim of domestic violence and other acts of violence at the hands of Michael Rawson. I have had regard to the details of the threats and violence set out in your records which were tendered to me and the reports and submissions in that regard. I have no difficulty accepting that you were the victim of ongoing abuse and violence from Mr Rawson. Whether you obtained and kept the firearm for the purposes of self-defence is a separate issue.
...
Having heard all of your evidence and considered all of the materials tendered on your behalf, I find that you have been untruthful about the circumstances and reason for the possession of the firearm. I do not know and cannot make a finding about why you had the loaded firearm in your possession. Obviously, the firearm had a value. The serial numbers had been deleted or removed. I find that you possessed the firearm for that lengthy period of time for an unlawful purpose, either for the unlawful act or acts of some other person or yourself. The precise nature of those acts I cannot know. I cannot know whether or not you were holding the weapon for yourself, or for a friend or an associate, or member of your family or otherwise. I make no finding in that regard.
The Judge made reference to the reports of Dr Raeside and Mr Fugler and in particular said:
I note the various reports and the documents including the records you made of your relationship with Mr Rawson which were tendered to me concerning your personal circumstances. I note the reports of Dr Raeside and Mr Fugler which must also be seen in light of the factual findings that I have made in respect of your account of events.
The Judge also addressed the opinions of Dr Raeside and Mr Fugler later in her remarks as follows:
I have regard to the effect upon you of the violent relationship with Mr Rawson, including that you suffered from post-traumatic stress disorder as a result of the violence inflicted upon you. That condition appears to have resolved, but your difficulties in that regard are important matters as to your personal circumstances. To your credit, notwithstanding that post-traumatic stress disorder, you have apparently continued to function well and have re-established a stable, productive life both as to work and in a relationship. These are important matters relevant to your prospects of rehabilitation which I accept appear to be good. I also accept that the risk of your reoffending is low.
We are satisfied that the Judge erred in her treatment of the circumstances of the defendant providing a written statement to the police. The Judge’s assertion that, “In fact, you did not and would not participate in a police interview”, was not supported by the evidence. On the appeal, it was confirmed that the police had not sought to question the defendant.
The Director acknowledged that the Judge had erred in concluding that the defendant would not participate in a police interview. The Director suggested that this statement was simply an aside of no significance.
In our view, given the interchange that took place during the Judge’s cross-examination of the defendant, it is apparent that this matter did have significance in the Judge’s mind. It is apparent from remarks made during the course of sentencing submissions, a number of which have been extracted above, that the Judge was critical of the defendant going with her solicitor and providing a written statement. It follows that the Judge sentenced on a misunderstanding of fact and on a matter on which it may be inferred that the Judge was highly critical of the defendant. To pick up the word used during submissions, in the Judge’s mind, this was simply a “contrivance”. In our view, there was no basis for this suggestion.
The Judge had formed an early opinion that this was a contrivance. Her Honour’s questioning of the defendant’s solicitor about whether he acted for members of outlaw motorcycle gangs was inappropriate, particularly in circumstances when she was concerned that the defendant was taking the fall for a person connected with an outlaw motorcycle gang.
On the appeal, counsel for the defendant submitted that the appearance of impartial justice was compromised as the conduct of the Judge conveyed the impression that preconceived adverse views about the defendant were held and were influencing her approach to the case. The Judge entered the arena and, in the process, denigrated the defendant. In these circumstances, it was said that an appearance of bias had arisen.
It is to be recalled that the decision on whether the point of unfairness has been reached is to be made in the context of the whole of the proceedings and in light of the number, length, terms and circumstances of the interventions. A mere count of the number of questions asked is not a sound basis from which to ground an argument that there has been undue intrusion.[13]
[13] R v Lars (1994) 73 A Crim R 91, 121-2.
Our review of the transcript reveals many instances of lengthy periods of cross-examination of the defendant. The questioning was incisive and represented a direct attack on the credibility of the defendant. We consider that the submission that the Judge had entered into the arena and taken on the role of the prosecutor was fully justified. We consider that, through this process, the Judge demonstrated pre-judgment which then became manifest in the sentencing remarks. In our view, an appearance of bias arose. In these circumstances, we conclude that the discretion as to whether to suspend the sentence has miscarried. In our view, this Court should allow the appeal and determine for itself whether the sentence of imprisonment should be wholly suspended.
Sentencing Discount
A further matter arises consequent upon our conclusion that the Judge was in error in rejecting the defendant’s explanation for her possession of the firearm.
The Judge referred to the defendant’s early pleas of guilty. She said:
Your early guilty pleas would ordinarily have attracted a very substantial discount of 40% of the sentence. However, my findings about the circumstances of possession of the firearm and that you have been untruthful as to that issue, reduce the credit that you should receive in that regard. I reduce the discount in light of your conduct and the untruthful account you have given in respect of this matter.
The principle of applying a discount to what would otherwise have been the appropriate sentence was discussed in Cameron.[14] Gaudron, Callinan and Gummow JJ discussed the relevance of a plea of guilty. They referred to Siganto,[15] in which the majority, Gleeson CJ, Gummow, Hayne and Callinan JJ, observed that a guilty plea is a matter ordinarily to be taken into account for two reasons: it is usually evidence of some remorse on the part of the offender; and the community is spared the expense of a contested trial.
[14] Cameron v The Queen (2002) 209 CLR 339.
[15] Siganto v The Queen (1998) 194 CLR 656.
In Cameron, the majority said:[16]
... It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another’s plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
[Footnote omitted.]
[16] Cameron v The Queen (2002) 209 CLR 339, [11]-[13].
Since the decision in Cameron,[17] Parliament has amended the Sentencing Act to provide for a reduction of sentences for pleas of guilty both in the Magistrates Court and the higher courts. Section 10C provides:
[17] Cameron v The Queen (2002) 209 CLR 339.
Reduction of sentences for guilty plea in other cases
(1) This section applies to a sentencing court other than where section 10 applies.
(2) If a defendant has pleaded guilty to an offence or offences—
(a) not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b) more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c) during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;
(d) during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(e) within 7 days immediately following—
(i)an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or
(ii)a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings, determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;
(f) in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
(3) If—
(a) a maximum reduction available under subsection (2) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and (b) the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—
(i) the court did not sit during that period; or
(ii)the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or
(iii)the court did not list the defendant's matter for hearing during that period; or
(iv)the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period,
the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.
(4)In determining the percentage by which a sentence for an offence is to b reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a) whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;
(b) the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c) the circumstances surrounding the plea;
(d) in the case where the defendant has been charged with more than 1 offence — whether the defendant pleaded guilty to all of the offences;
(e) if the defendant satisfies the court that he or she could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—that fact;
(f) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,
and may have regard to any other factor or principle the court thinks relevant.
(5) Nothing in this section affects the operation of sections 15, 16 and 17.
(6)For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.
When introducing the Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 (SA), the Attorney-General stated that the main objective of the Bill was to improve the operation and effectiveness of the criminal justice system by reducing delays in cases coming to trial. It encourages offenders who are minded to plead guilty to do so in a timely way. He observed:[18]
The bill provides for a graduated series of discounts for pleas of guilty. The quantum of the discounts are dependent on the timing and circumstances of the guilty plea. The earlier the plea the higher the discount. The bill restricts the conferral of discounts for late guilty pleas but permits adequate discretion to a court to ensure that defendants who may plead guilty at a late stage through no fault of their own part, or some good reason, are not unfairly prejudiced.
...
What the bill achieves is the codification of the rule that the earlier the guilty plea the greater the discount. It places some limits on the freedom of the courts in providing discounts in sentencing. The bill is not radical or revolutionary. Its major effect is to make transparent and regulate what already happens or, at least, what should be happening, in the state’s criminal courts on a daily basis.
There has been strong support in both Australia and overseas amongst law reform agencies, judges, academics and legal practitioners for a statutory scheme to encourage early guilty pleas and regulate discounts for guilty pleas. Such a reform helps tackle delay and thus assist all parties in the criminal justice process, especially victims and witnesses.
[18] South Australia, Parliamentary Debates, House of Assembly, 11 July 2012, 2426 (the Honourable J.R. Rau), 2427.
The Sentencing Act therefore recognises the utilitarian value to be placed upon a plea of guilty. The question of whether the plea demonstrates genuine contrition on the part of a defendant is of a lesser consideration than it might have been prior to the enactment of section 10C. It is clear that the intention of Parliament was to encourage defendants to plead at the earliest opportunity so that the courts could run more efficiently and so that expense would be saved. Parliament has provided that a plea of guilty at an early stage entitles a defendant to seek a substantial reduction of a sentence on the basis that the plea has saved the community expense.
One of the purposes of the Sentencing Act is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system and decreasing costs. It follows that to encourage early guilty pleas there must be a degree of certainty that offenders can be confident that, if they plead guilty at the first opportunity, their sentence is likely to be discounted substantially and, in the case of a plea not more than four weeks after the defendant first appeared in court, that reduction will be up to 40 per cent. Those advising defendants must be able to advise with some certainty that an early plea will lead to a substantial discount of their sentence. If there is no certainty, the incentive to plead guilty will be reduced and the purpose of the legislation will be defeated.
The Sentencing Act does not mandate the amount of the discount. The court has a discretion and the discount can be reduced having regard to other factors, including those referred to in section 10C(4), for example, if a disputed facts hearing occurs, many witnesses are called and the court rejects the basis upon which the defendant has pleaded. Nevertheless, where there are no circumstances of aggravation, a plea of guilty at the first opportunity should result in a discount of about 40 per cent.
Resentencing
In resentencing the defendant, we have had regard to section 10C of the Sentencing Act. We consider that the final sentence arrived at by the Judge was merciful. Counsel for the defendant did not argue for any reduction of the sentence or the non-parole period. We consider that in all the circumstances, other than a reduction for time spent in custody, we should not interfere with the head sentence or non-parole period. The only issue which therefore arises is whether good reason exists to suspend the sentence.
The notional starting point of the Judge was 24 months’ imprisonment, which she reduced to 18 months’ imprisonment. We consider this starting point was appropriate and not manifestly excessive, but we would reduce the head sentence to 17 months’ imprisonment with a non-parole period of four months’, having regard to the fact that the defendant has spent one month in custody pending this appeal.
The substantial issue on appeal was whether the Judge erred in failing to exercise her discretion to suspend the sentence. For the reasons set out above, the appeal should be allowed and the issue of suspension reconsidered. In our view, for the reasons that follow, it is appropriate for this Court to order that the term of imprisonment be wholly suspended.
The Court’s power to suspend a sentence upon the entry by the defendant into a bond to be of good behaviour is found in section 38 of the Sentencing Act, which relevantly provides:
Suspension of imprisonment on defendant entering into bond
(1) Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
An important matter to be addressed is the gravity of the offending. Firearms offences represent a real and serious threat to the community. The possession, trade and use of unregistered firearms is of significant concern. Parliament has expressed its intention to address the danger posed by firearms by the setting of maximum penalties and enacting specific provisions in the Sentencing Act which give paramount consideration to the need for deterrence.[19]
[19] Criminal Law (Sentencing) Act 1988 (SA) section 10(2)(e).
This Court has observed that the community must not be complacent about the dangers of firearms and the damage that can be caused by them. In Daniele, writing for the Court, Gray J said:[20]
Possession of a firearm is a privilege and a serious responsibility. The overriding police of the Firearms Act 1977 (SA) is to protect the public by controlling the possession and use of firearms. Parliamentary debates indicate that this legislation was enacted in response to the increasing use of firearms in serious offences and the proliferation of such weapons in the community. Relevant amendments were made to the Firearms Act in 2008. In the second reading speech the Minister said:
In South Australia the majority of violent criminal behaviour with firearms does not involve legitimate firearm owners, nor legitimately owned, secured and registered firearms. Whilst there is some conjecture as to the quantity of illegal firearms circulating in the community, there is no doubt that there is a market for unrecorded and essentially untraceable firearms to be used for a criminal purpose. It is the nature of this enterprise that there exists difficulties in police being able to prevent the trade and the subsequent crime arising from it.
The need for general deterrence is particularly apparent in sentencing for offences of this kind. The community should not be complacent about the dangers of firearms and the damage that can be caused by them.
[Footnotes omitted.]
[20] R v Daniele [2014] SASCFC 22, [25]-[26].
In the present case, the firearm was loaded and easy to conceal. It was unregistered and its serial number had been removed. It posed a serious danger to the community, notwithstanding that it was hidden and secured.
We found that there was no lawful purpose for the possession of this firearm. The Judge found that the defendant possessed the firearm for an “unlawful purpose, either for the unlawful act or acts of some other person or yourself.” The conclusion that the defendant held the firearm for some other person was not established on the evidence. Nevertheless, possession of a firearm is in itself a serious offence and only in the most exceptional circumstances would a penalty other than imprisonment be justified.
On the appeal, counsel for the defendant submitted that the defendant’s personal background strongly supported a finding that there was little or no need for personal deterrence and that the defendant was unlikely to commit a criminal offence again. It was accepted that the removal of the serial number was an objective feature of the firearm. However, it was pointed out that the defendant was unaware that the serial number had been removed. Attention was drawn to the fact that the defendant kept the firearm hidden in a bag within another bag, in the rafters of a locked shed to which she had the only key and that she had never carried the firearm around with her or fired it. It was contended that there was no evidence from which it could be inferred that she intended to use it for a criminal purpose.
The defendant was aged about 17 years when she commenced her relationship with Mr Rawson. She had a daughter with him, who is now five years of age. Mr Rawson is allowed contact with his daughter. The defendant has no previous convictions or court appearances in respect of any criminal matter.
We accept that the defendant was the victim of ongoing abuse and domestic violence from Mr Rawson. Mr Fugler and Dr Raeside diagnosed the defendant with post-traumatic stress disorder. Dr Raeside concluded as follows:
In summary, Ms Capaldo is a 24 year old woman who described a generally unremarkable early home life, apart from early parental separation, lack of regular contact with her father, and being raised in relative poverty by a single mother. She struggled at school due to some learning difficulties and by early high school started to become truant and even worked during the day whilst her mother thought she was at school. She then returned to school, but left during Year 10 and did a beauty course and began to work in that area.
At 17 she commenced a relationship Michael Rawson, which she described as particularly abusive physically, emotionally and sexually. Apart from actual physical abuse, she reported that he regularly threatened her and her mother, leaving her feeling too scared to leave the relationship. Eventually with the assistance of a domestic violence worker she was able to leave, but continued to receive ongoing harassment and threats (although apparently not directly) from Mr Rawson and also towards her mother. She reported that eventually she decided to obtain a hand gun for her protection as she feared that he would come and try to kill her, including with firearms. In retrospect, she thought this as rather naïve as she did not actually know how to use it. Nevertheless, it seemed to serve an emotional purpose of giving her some reassurance.
Ms Capaldo referred to a number of posttraumatic stress symptoms whilst in a relationship with Mr Rawson and subsequently, including re-experiencing the trauma through intrusive memories, nightmares and flashbacks; increased anxiety with hypervigilance and easy startle response; as well as avoidance behaviour as described. It is difficult to ascertain the impact on her actual function during that period as Mr Rawson reportedly prevented her from working, but after the end of the relationship she returned to work, seemingly without difficulty. Likewise, her social functioning was impaired, not the least because of Mr Rawson’s behaviour to isolate her from others. Nevertheless, according to Ms Capaldo’s own account, she experienced significant distress at these recurrent traumatic experiences.
Dr Raeside diagnosed the defendant as having experienced a post-traumatic stress disorder arising out of multiple traumatic experiences in her abusive relationship with Mr Rawson. Dr Raeside also diagnosed the defendant as having some features of a complex post-traumatic stress disorder.
In regard to the defendant’s offending behaviour, Dr Raeside expressed the following opinion:
In my opinion, Ms Capaldo would have been suffering from a mental illness atthe time of the alleged offending, namely the residual ongoing effects of the PTSD. Her explanation about seeking a way in which to protect herself from what she perceived as real threats of harm and even death (to her and her family members including her daughter) from Mr Rawson would be consistent with her PTSD at the time. However, there does appear to be a strong reality basis to her concerns (and I note her application for a restraining order that outlines at least some of these matters).
I do not think that the PTSD would have impaired her ability to know the nature and quality of her actions, the wrongfulness of them, or be totally unable to control her conduct. However, the PTSD might have put her in genuine fear apart from any realistic fears as well. It might also have led to some of her naïve thinking that possessing a hand gun, which she apparently did not know how to use, would have been an adequate protection for her. In this regard, her judgment appears to have been somewhat impaired, but not to the point of rendering her mentally incompetent.
According to Ms Capaldo, she did not seek a weapon to enact revenge or even a pre-emptive strike to protect herself and the family. Rather, she seemed to derive greater benefit from the security of knowing she had a weapon that she potentially could use for self-defence, rather than actually intending to use it.
As noted, Ms Capaldo’s mental health has improved considerably in recent times such that I do not believe she has any ongoing mental illness. I believe she is currently fit to be sentenced.
[Emphasis added.]
Counsel for the defendant submitted that the material before this Court supports the conclusion that the defendant has, at least in part, overcome the adversity that affected her in the past. She has a good relationship with her current partner and supportive family members. She has permanent employment and is focused upon the wellbeing of her five year old daughter, who has just started school. It was said that this is indicative of the defendant’s rehabilitation.
It was further submitted that the defendant’s early admissions and guilty pleas were strong evidence of contrition and remorse. Counsel argued that these matters were relevant not only to the fixing of the head sentence and the non-parole period, but also to the exercise of the discretion to suspend the sentence.
In our view, the defendant’s possession of the firearm is a matter of serious concern. A sentence of imprisonment, even for a first offender, was appropriate. In this way, the need for general deterrence is addressed. However, the defendant’s mental state at the time of the offending and her personal circumstances are powerful mitigating factors to be taken into account when considering whether to suspend the term of imprisonment.
Conclusion
We grant permission to appeal and allow the appeal. We resentence the defendant to 17 months’ imprisonment with a non-parole period of four months, and suspend the term of imprisonment upon the defendant entering into a supervised bond to be of good behaviour for three years.
KELLY J.
Introduction
This is an application for permission to appeal, and an appeal against sentence. The appellant pleaded guilty to one offence of aggravated possession of a class H firearm while not holding a licence authorising possession of that firearm contrary to s 11(1) of the Firearms Act 1977 (SA). The circumstance of aggravation is that the firearm was loaded. The maximum penalty for that offence is a fine of $50,000 or imprisonment for 10 years.
The appellant also pleaded guilty to three other offences; namely, possession of a class H firearm with defaced or altered characters contrary to s 24A(7)(b) of the Firearms Act 1977 (SA), failing to keep a class H firearm secured contrary to reg 38(2) of the Firearms Regulations 2008 (SA), and failing to store ammunition in a locked container kept separately from the firearm, contrary to reg 41(1) of the Firearms Regulations 2008 (SA).
After a disputed fact hearing, the sentencing Judge imposed the following penalties. In respect of the aggravated possession of a firearm and possession of the firearm with defaced characters the Judge imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), and ordered that the appellant be imprisoned for a period of one year and six months with a non-parole period of five months. In respect of the latter two charges the appellant was convicted without further penalty. Her Honour declined to exercise the discretion to suspend the sentence.
The grounds of appeal
The appellant appealed against sentence on two grounds, namely that the sentence imposed was manifestly excessive and that the sentence should have been suspended. A third ground was added during the hearing of the appeal, namely that the Judge failed to take into account that the appellant was suffering from post-traumatic stress disorder at the time of the offences, or undervalued that fact.
The appellant submitted that the Judge’s conduct during sentencing submissions and in the course of the evidence taken during the disputed fact hearing led her Honour into error in the sense that her interventions and comments demonstrated pre-judgment in the matter, and gave an appearance of bias.
I agree that permission to appeal and the appeal should be allowed, and the orders made by the sentencing Judge set aside. However, in my view, the matter should be remitted to the District Court for sentencing by another Judge. My reasons follow.
Pre-judgment and apprehended bias
The Judge’s questions to the appellant during both examination in chief and cross-examination during the disputed fact hearing, and comments about the evidence, have been set out in some detail in the judgment of Gray and Sulan JJ. I shall not repeat them again.
The relevant test is whether the Judge’s interventions in the conduct of the proceedings would cause any fair-minded lay observer to apprehend bias.
Regrettably, there were aspects of the Judge’s comments and her interventions during the taking of evidence which would give rise to the impression that the Judge drew an adverse inference about the appellant’s credit for no other reason than that she exercised her right to silence, after providing a statement to the police accepting that she was in possession of the firearm found at her mother’s residence. The Judge’s comments that the appellant had chosen to make a statement to the police and refused to submit herself to questioning, in circumstances where there was nothing in the evidence to support the conclusion that the police sought to question the appellant or that she had refused questioning, compounded that impression of bias.
For this reason, I consider that the appellant has made good the complaint that the sentencing process miscarried by virtue of the Judge’s conduct during the proceedings. I join in the order allowing the appeal for this reason. However, I respectfully differ from the approach taken by Gray and Sulan JJ on the question of the appellant’s resentencing.
In light of this Court’s decision to overturn the orders made by the Judge, the dispute as to the appellant’s reason for possessing the firearm will need to be addressed anew. The factual basis for resentence therefore remains unsettled. This Court is not in a position to make any findings in respect of this potentially important issue, as a finding would depend on an assessment of the appellant’s credit. This Court is not in a position to resolve that issue. The extent of the discount to be applied for the guilty plea is a matter which can be addressed when the factual foundation for sentence is clear.
In my respectful view, there is no proper factual foundation upon which this Court can resentence the appellant, and the matter should be remitted to the District Court for hearing before another Judge.
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