R v Nemer

Case [2003] SASC 375

R v NEMER
[2003] SASC 375

Court of Criminal Appeal: Doyle CJ, Prior and Vanstone JJ

  1. DOYLE CJ:The majority of the court consider that the direction pursuant to which the Director of Public Prosecutions has applied for leave to appeal in this matter is valid: see Nemer v Holloway & Ors [2003] SASC 372. Accordingly, it is necessary for the court to consider the Director’s application.

  2. The facts relevant to the application, and the course of submissions before the sentencing judge are to be found in the reasons of Vanstone J.  I will not repeat those matters.

  3. The controversy that this case has generated makes it appropriate for me to make some general remarks before I deal with the Director’s application.

    The Sentencing Process

  4. The sentencing of offenders who have committed serious crimes is difficult.

  5. The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.

  6. The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.

  7. In different cases these considerations will operate in different ways and to differing degrees.  As has been said, these considerations are no more than guideposts to the appropriate sentence, and sometimes they point in different directions: Veen v The Queen [No 2] (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.

  8. That is why sentencing an offender is not a precise process.  There is no sentence that is exactly right in a given case.  In any particular case the most that can usually be said is that an appropriate sentence will be within a certain range.  Any sentence within that range is appropriate.  Different judges, presented with the one case, are likely to arrive at different results within that range.  The different results do not indicate that an error has been made,…

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AGLC
R v Nemer [2003] SASC 375
Case
[2003] SASC 375
Decision Date

CaseChat Overview and Summary

In the case of R v Nemer, the respondent, Mr. Nemer, appealed against the refusal of leave to appeal his sentence. The dispute involved the sentencing judge's acceptance of certain facts presented by Mr. Nemer's counsel, despite these facts being in conflict with verified statements and sworn evidence. The primary legal issues before the court were whether the sentencing judge correctly accepted the submissions made on behalf of Mr. Nemer and whether the Director of Public Prosecutions should have been granted leave to appeal against the sentence. The court examined whether there was a miscarriage of justice due to the sentencing judge's acceptance of the submissions over conflicting evidence.

The court found that the sentencing judge erred in accepting the submissions made by Mr. Nemer's counsel without compelling evidence. It was established that the onus was on the offender to provide sworn evidence when there was a conflict between the submissions and verified statements. The submissions made by counsel for Mr. Nemer contradicted verified statements and sworn evidence which had not been expressly abandoned by the prosecutor. Therefore, the sentencing process miscarried as the judge accepted the submissions despite the conflicting evidence. The court concluded that the Director of Public Prosecutions should have been granted leave to appeal due to the miscarried sentencing process.

The reasoning of the court was based on established principles of law regarding appeals against sentence by the Director of Public Prosecutions. The Chief Justice and the other judges agreed that the sentencing process miscarried significantly. The miscarried process was attributed to the submissions made by counsel for Mr. Nemer and the conduct of the prosecutor, which led the sentencing judge to an incorrect factual basis. Consequently, the court held that it was in the public interest to permit the sentence to be reviewed.

The final orders of the court were to grant leave to appeal and to set aside the decision of the sentencing judge. The case was to be remitted for re-sentencing, ensuring that the correct principles of law and evidence were applied. The decision underscored the importance of adhering to legal principles and the duty of counsel to call evidence when there is a conflict with verified statements.

Orders

Orders of the court

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Background

Background to the litigation

The Director was far from agreeing to the basis suggested by Ms Powell, although, as I have recounted, he did not challenge it. At no stage did the Director suggest that the depositions should be discarded. And anyway, throughout the hearing the learned sentencing judge plainly indicated his concern about the submissions put and the conflict with the depositions. That Ms Powell was well aware of the difficulty she faced was acknowledged in the written submissions, which concluded:“Whichever view of the facts your Honour takes, the prosecution and defence are ad idem when we say that a suspended sentence in these circumstances is within your Honour’s discretion.” (my emphasis) In the state of the depositions, the respondent’s decision not to give evidence before the sentencing judge is unsurprising. This is not a case where counsel could have overlooked the possibility that the version given would be rejected or where the decision not to call Mr Nemer could have been other than a considered one. In my view just as there could have been no complaint of lack of notice at the eventual rejection by the sentencing judge of some of the defence submissions – and indeed there has not been any – nor could there be any now in the face of a more comprehensive rejection. In this context of the facts of the offence the Solicitor-General also sought to rely on statements attributed to Mr Nemer by a psychiatrist, Professor Barrett, who prepared a report in relation to the respondent at the request of his solicitor. That report was before the sentencing judge on 7 July. That report read as follows:“Mr Nemer said that the girls were distressed and screaming over the phone, saying that someone was chasing them and that this person was holding something in his pocket. On this basis, Mr Nemer thought that the man had a gun and that the girls were at risk of being raped. [K] and he quickly drove to the Unley Shopping Centre where they found the girls, who pointed out a van, saying that the man who had chased them was back. Mr Nemer said he pointed the gun at the person to scare him off, and was particularly struck by the way this man just looked back at him, a blank expression on his face, as if he did not care about what he had done to the girls. In retrospect he realizes that the man must been scared, but at the time he thought that he just did not care. He then fired a shot, saying that he wanted to scare the person. The van then drove off.” If this account of events were accurately recorded by Professor Barrett then it, too, tended to contradict the version put to the court. However no reference was made to this passage during the sentencing submissions. One would have thought that if Professor Barrett had incorrectly related the respondent’s statements to him then counsel for the respondent would have expressly disavowed the account. However, neither counsel at first instance drew attention to it. It cannot be doubted that the judge read the report before sentence. However, since no particular use was made of this passage by the Director and since the judge did not refer to it in his remarks, it seems to be inappropriate now to lay emphasis on it. In any event it adds little to those parts of the depositions to which I have already referred.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As to the criticism of my decision, I have tried to explain how the principles of law governing appeals against sentence by the Director, and how considerations of justice affecting the particular case, lead to the result that I have reached.Conclusion I would refuse to grant leave to appeal. PRIOR J: I agree with the general remarks made by the Chief Justice. I also agree with His Honour that leave to appeal should be refused if the facts as found by the judge are not to be revisited. I agree with what the Chief Justice has written about that. However, I do not think that it is in the public interest to permit the sentence to stand on the factual basis accepted by the sentencing judge. The sentencing judge may have been led into error as a result of the submission made by counsel for Mr Nemer and the conduct of the prosecutor during the submissions. In my view the proper administration of criminal justice requires the exercise of the power to seek leave to appeal and appeal in this case[1]. The sentencing process in this case has miscarried to such an extent that leave to appeal should be granted. [1] Malvaso v The Queen (1989) 168 CLR 227 at 233 In R v Perre[2], Chief Justice King spoke of the obligation upon counsel to decide whether or not to call evidence when there is a conflict between submissions put and depositions. His Honour spoke of a duty to call evidence being cast upon the offender. Exceptionally, that duty might be excused if the defence can “validly claim to have been misled”[3]. [2] (1986) 41 SASR 105[3] R v Perre (1986) 41 SASR 105 at 106 There is still an onus on the offender to give sworn evidence before the sentencing judge can sentence on a factual basis contradicted by verified statements and sworn evidence not expressly abandoned by the prosecutor[4]. This was a case where the submissions put contradicted the verified statements and sworn evidence. The remarks of King CJ therefore applied. Counsel could not assume that the sentencing judge would sentence upon the basis of her submissions. [4] R v Lobban (2001) 80 SASR 550 at [17] The sentencing process here miscarried. The sentencing judge failed to appreciate that he was unable to accept the submission put by Mr Nemer’s counsel given the material before him and the absence of any clearly agreed facts at variance with those statements. Things said by the Director indicated that facts asserted by Mr Nemer’s counsel remained controverted. However, there were other occasions in the course of the submissions when the asserted facts inconsistent with three verified statements were not plainly disputed. The judge appears to have acted on a particular assertion put on Mr Nemer’s behalf because of the various things said, or not said, by the prosecutor. Whilst saying, more than once, that the prosecution stood by what Mr Williams said in his statement about the pistol being very close to the window and that the prosecution was “in a position of not being able to agree facts”, the Director otherwise indicated that the prosecution could not dispute a version of facts inconsistent with the version of events described by Mr Williams, Ms A and Ms M in their verified statements. It was wrong to put the matter in that way. The version put was disputed. The onus was upon the offender to give sworn evidence because the verified statements were not qualified or abandoned[5]. [5] R v Perre; R v Maitland [1963] SASR 332; R v Vecsey [1962] SASR 127

Ratio Decidendi

Legal Principle Established

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