Samandi v R

Case •

[2020] NSWCCA 217

•

27 August 2020

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Samandi v R [2020] NSWCCA 217
Hearing dates: 14 August 2020
Decision date: 27 August 2020
Before: Bell P at [1]
Johnson J at [2]
Rothman J at [166]
Decision:

1. Leave to appeal against conviction refused.

2. Grant leave to appeal against sentence.

3. Appeal against sentence dismissed.

4. For the purpose of s.28A(2) Criminal Appeal Act 1912, an order is made that the Applicant’s aggregate sentence imposed on 13 December 2018 should recommence 27 August 2020.

5. For the purpose of s.18(2) Criminal Appeal Act 1912, the Court notes that the period between 10 June 2020 and 26 August 2020 does not count as part of the aggregate sentence of imprisonment imposed on 13 December 2018.

6. As a result of the alterations to the aggregate sentence referred to in [165](d) and (e), the non-parole period will now expire on 7 February 2021 and the aggregate sentence will expire on 6 May 2023.

7. The earliest date on which the Applicant will be eligible for release on parole is 8 February 2021.

Catchwords:

APPEAL – application for leave to appeal against conviction and sentence – domestic violence offences and making false accusation offence committed in 2016 – applicant pleaded guilty to certain offences in District Court after commencement of jury trial – Crown agreed not to proceed further on counts alleging offences of having sexual intercourse without consent – applicant gave signed instructions to his legal representatives to plead guilty – applicant wrote letter of apology tendered on sentence – principles to be applied on appeal against conviction involving application to withdraw pleas of guilty – whether there has been a miscarriage of justice – evidence given by applicant and applicant’s former legal representatives at hearing in Court of Criminal Appeal – applicant’s pleas of guilty entered freely and voluntarily and with full knowledge of elements of offences – no miscarriage of justice – leave to appeal against conviction refused – application for leave to appeal against sentence – whether applicant’s legal representation in sentencing court was incompetent – where reasonable steps were taken by applicant’s legal representatives to advise him of available courses of action – 2008 medical report not available at time of sentence – 2008 report placed before Court of Criminal Appeal – no nexus demonstrated between 2008 report and commission of the domestic violence and public justice offences in 2016 – whether aggregate sentence imposed was manifestly excessive – objective gravity of domestic violence and public justice offences – specific and general deterrence and recognition of harm important factors on sentence for domestic violence offences – aggregate sentence was not manifestly excessive – leave to appeal against sentence granted – appeal against sentence dismissed

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Criminal Appeal Act 1912

Criminal Procedure Act 1986

Cases Cited:

Attorney General for NSW v John Fairfax and Sons Limited and Bacon (1985) 6 NSWLR 695

Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82

Cherry v R [2017] NSWCCA 150

Hunter Quarries Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326

Kanakaradnam v R [2018] NSWCCA 282

Kennedy v R [2017] NSWCCA 193

Khamis v R [2014] NSWCCA 152

Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302

R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61

R v Kaewklom (No. 2) [2012] NSWSC 1117

R v Samandi [2018] NSWDC 397

Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102

Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170

Tsiakas v R [2015] NSWCCA 187

Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129

Texts Cited:

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Category:Principal judgment
Parties: Ali Samandi (Applicant)
Regina (Respondent)
Representation:

Counsel:
Mr A Samandi (Applicant in person)
Mr D Patch (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2017/58827
Publication restriction: ---
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
---
Citation:

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Date of Decision:
13 December 2018
Before:
His Honour Judge Norrish QC
File Number(s):
2017/58827

Judgment

  1. BELL P: I agree with the reasons and orders proposed by Johnson J.

  2. JOHNSON J: The Applicant, Ali Samandi, seeks leave to appeal against conviction and sentence passed at the Sydney District Court on 13 December 2018 for offences of assault occasioning actual bodily harm under s.59(1) Crimes Act 1900 (six counts), assault under s.61 Crimes Act 1900 (three counts), intentionally damaging property contrary to s.195(1)(a) Crimes Act 1900 (one count) and making a false accusation knowing that persons are innocent of an alleged offence contrary to s.314 Crimes Act 1900 (one count).

  3. Following pleas of guilty to these charges, the Applicant was sentenced by his Honour Judge Norrish QC on 13 December 2018 to an aggregate sentence of imprisonment for six years comprising a non-parole period of three years and nine months commencing on 23 February 2017 and expiring on 22 November 2020, with a balance of term of two years and three months commencing on 23 November 2020 and expiring on 22 February 2023.

  4. As will be seen, the charges to which the Applicant pleaded guilty included acts of domestic violence by the Applicant directed to his partner in a period between 2015 and 2017 when the Applicant was aged 31 or 32 years and his partner, FF, was 28 or 29 years of age. In accordance with usual practice in domestic violence cases, the complainant will not be identified in this judgment.

  5. In accordance with s.53A Crimes (Sentencing Procedure) Act 1999, his Honour stated the following indicative sentences for each offence:

Count

Offence

Maximum Penalty

Indicative Sentence

1

(on first indictment)

On 17 December 2015, assault FF contrary to s.61 Crimes Act 1900

Imprisonment for two years

Imprisonment for five months

2

Between 1 February 2016 and 29 February 2016, assault FF contrary to s.61 Crimes Act 1900

Imprisonment for two years

Imprisonment for six months

3

Between 1 February 2016 and 31 March 2016, assault FF occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900

Imprisonment for five years

Imprisonment for 11 months

4

On 2 May 2016, assault FF occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900

Imprisonment for five years

Imprisonment for one year and four months

5

Between 1 September 2016 and 30 September 2016, assault FF occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900

Imprisonment for five years

Imprisonment for one year and four months

6

Between 1 December 2016 and 31 December 2016, assault FF occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900

Imprisonment for five years

Imprisonment for one year and nine months

7

Between 1 December 2016 and 31 December 2016, assault FF contrary to s.61 Crimes Act 1900

Imprisonment for two years

Imprisonment for 11 months

8

Between 1 December 2016 and 31 December 2016, assault FF occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900

Imprisonment for five years

Imprisonment for two years

10

On or about 11 February 2017, assault FF occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900

Imprisonment for five years

Imprisonment for two years and eight months

13

On 15 February 2017, intentionally damaging property contrary to s.195(1)(a) Crimes Act 1900

Imprisonment for five years

Imprisonment for one year and one month

1

(on second indictment)

On 4 May 2016, making a false accusation intending persons to be the subject of an investigation of an offence, knowing that the persons are innocent of the alleged offence contrary to s.314 Crimes Act 1900

Imprisonment for seven years

Imprisonment for two years

  1. Contained on a certificate under s.166 Criminal Procedure Act 1986 was an offence of (between 16 and 19 June 2017) knowingly contravening a prohibition or restriction specified in an apprehended domestic violence order (“ADVO”) contrary to s.14(1) Crimes (Domestic and Personal Violence) Act 2007 for which the maximum penalty was imprisonment for two years or 50 penalty units or both. For this offence, the Applicant was sentenced to a term of imprisonment for five months commencing on 18 October 2018 and expiring on 17 March 2019.

Grounds of Appeal

  1. The Applicant appeared for himself at the hearing of the appeal. He prepared and filed a range of documents in advance of the hearing in this Court.

  2. On 20 December 2018, the Applicant filed a Notice of Intention to Appeal against conviction and sentence with this Notice being extended on a number of occasions to expire on 30 April 2020.

  3. On 16 March 2020, the Applicant filed his Notice of Appeal, grounds of appeal and written submissions.

  4. The Applicant’s grounds of appeal with respect to conviction are in the following terms:

  1. Conviction Ground 1 - the failure of defence counsel at trial to follow the instructions of the Applicant constituted a miscarriage of justice.

  2. Conviction Ground 2 - the learned trial Judge erred in not granting leave to set aside the Applicant’s guilty plea following the administration of allocutus.

  3. Conviction Ground 3 - the defect of the trial can be only remedied by a new trial, such that a verdict of new trial should be entered.

  1. What is described as Conviction Ground 3 is not a separate ground of appeal, but a submission made as to what the Applicant contends is the appropriate outcome if the conviction appeal is allowed.

  2. As the grounds relied upon by the Applicant do not involve a question of law alone, he requires leave to appeal against conviction: s.5(1)(b) Criminal Appeal Act 1912.

  3. The Applicant seeks leave to appeal, as well, with respect to sentence and has furnished various documents on that issue.

  4. The Crown paraphrased the Applicant’s sentence grounds in a manner which appears to state accurately the matters he seeks to raise:

  1. Sentence Ground 1 - that the legal representatives of the Applicant were “incompetent and dishonest in failing to execute the applicant’s instructions regarding a range of interrelated matters” including:

  2. the failure to subpoena medical material;

  3. the failure to seek and obtain a neurologist’s report concerning the (alleged) brain injury of the Applicant in 2007.

  4. Sentence Ground 2 - the sentence imposed was “too severe” as:

  5. the sentencing Judge erred in not taking into proper consideration the Applicant’s mental health history;

  6. the sentencing Judge was prejudiced by being exposed to the facts concerning charges that were no longer pressed by the Crown.

  7. Sentence Ground 3 - the Applicant’s solicitor deceptively advised him “that the agreement produced relating to the plea bargain negotiations with the Crown [including] the particular offences relating to counts 1, 2 and 7 to be taken into account on a form 1 table”, but this did not occur and the Applicant was “instead handed cumulative sentences for count 1, 2 and 7 on an aggregate [sentence with] all the other offences”.

  8. Sentence Ground 4 - the sentence imposed was manifestly excessive in all the circumstances, specifically regarding the non-disclosure of relevant medical information which deprived the Applicant of “game-changer material to support defence strategies for trial”.

  1. As will be seen, there is an overlap between the Conviction and Sentence Grounds, which complain in various respects concerning the Applicant’s legal representation in the District Court.

  2. On 9 June 2020, the Court of Criminal Appeal, differently constituted, granted the Applicant bail pending the hearing and determination of his appeal: Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102. It is clear that the principal factor which favoured the grant of bail was the proximity of the expiration of the Applicant’s non-parole period (22 November 2020) to the hearing date in this Court (14 August 2020).

  3. The Applicant was released on 9 June 2020 pursuant to the grant of conditional bail.

Hearing of the Appeal in this Court

  1. As noted earlier, at the hearing on 14 August 2020, the Applicant appeared without legal representation. He has been unrepresented throughout the appeal process and had taken steps himself to prepare for the hearing both before and after bail was granted to him on 9 June 2020.

  2. The Applicant had filed in the Court, and served upon the Crown, a wide range of documentation including affidavits, submissions and other material which were not assembled in an orderly way at the time of filing and service. In these circumstances, the Crown took steps to prepare a volume containing documents which appeared to be relied upon by the Applicant. An affidavit of Sophie Rose Freeman affirmed 30 July 2020 explained the steps which had been taken by the Crown to present this material in what was sought to be an orderly fashion. Ms Freeman is a legal clerk in the employ of the Director of Public Prosecutions (NSW). At the hearing, the Court received this volume entitled “Appeal Book 2” which was utilised for the purpose of the hearing.

  3. In addition, in accordance with usual practice, an appeal book was prepared and provided to the Court which contained the sentencing remarks of his Honour Judge Norrish QC and transcripts and exhibits from the proceedings before the District Court.

  4. The Crown objected to parts of the material contained in Appeal Book 2 on a number of bases, including relevance and form. The Court admitted the contents of Appeal Book 2, subject to determination of any necessary objection to relevance. As the Applicant stated that he proposed to give evidence, the Crown made clear that a number of objections to material were not pressed.

  5. Given the issues which fall for determination in the appeal, it is not necessary for the Court to rule upon any particular objection taken by the Crown to relevance of material contained in Appeal Book 2.

  6. The Applicant appeared physically in person at the hearing in accordance with his bail undertaking. The Crown appeared remotely by audio-visual link in accordance with usual practice during the COVID-19 pandemic.

  7. The Applicant was cross-examined by the Crown upon issues relating to his application to go behind his pleas of guilty entered in the District Court and his criticism of his former legal representatives for not obtaining medical material relevant to sentence.

  8. Having regard to the foreshadowed grounds of appeal and some of the material provided by the Applicant in support of his case, the Applicant had waived client legal privilege and the Crown obtained the following affidavits from his former legal representatives:

  1. affidavit of Luke Brasch, barrister, affirmed 29 July 2020;

  2. affidavit of Ihab Jamal, solicitor, sworn 30 July 2020;

  3. affidavit of Johnson Jiang, barrister, sworn 30 July 2020; and

  4. affidavit of Fadi Abbas, solicitor, sworn 30 July 2020.

  1. A range of documents were annexed to the affidavits of these deponents including signed instructions provided by the Applicant.

  2. Each witness gave evidence by audio-visual link and was cross-examined by the Applicant.

  3. The Applicant, who impressed as an intelligent and resourceful person, demonstrated at the hearing before this Court a command of the material and an understanding of the issues which fell to be determined by this Court.

Principles to be Applied on Application for Leave to Appeal Against Conviction Following a Plea of Guilty

  1. At the outset, it is appropriate to set out the principles to be applied by this Court where a convicted person seeks to appeal against conviction having pleaded guilty with respect to the offences in the District Court.

  2. In Kanakaradnam v R [2018] NSWCCA 282, with the concurrence of Simpson AJA and N Adams J, I said at [17]-[18]:

“17   In the case of an appeal against conviction following a plea of guilty, the ultimate question for this Court is whether it has been demonstrated that a miscarriage of justice will occur if the Applicant is not permitted to withdraw the plea. Any miscarriage of justice is to be found in the circumstances in which the Applicant came to enter his plea: R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 at 188 [20].

18   In R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170, the Court said at 312-313 [32]-[35]:

‘32 This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff.

33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48].

34 The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25].

35 A person may plead guilty upon grounds which extend beyond that person’s belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46.’”

  1. The judgment of Howie J in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129 has been applied regularly by this Court in decisions where application is made to go behind a plea of guilty entered at first instance: Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [33], [35]; Khamis v R [2014] NSWCCA 152 at [57]-[59]; Kennedy v R [2017] NSWCCA 193 at [45]; Kanakaradnam v R at [19]. Howie J said in Wong v Director of Public Prosecutions (NSW) at [33]-[39]:

‘33    A court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant’s own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea ‘is not in truth guilty of the offence’: Meissner at 141. Justice Dawson stated the following at 157 (footnotes omitted):

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.

34    There is a discussion as to the concept of a miscarriage of justice in relation to an application to withdraw a plea prior to conviction in Sewell, above. Smart AJ, with whom the other members of the Court agreed, at [39] pointed out the difficulty of trying to fit all the circumstances in which it might be in the interests of justice to permit a person to withdraw a plea of guilty ‘within one verbal formula’.

35    If the advice that the plaintiff received from his legal representative went to the nature of the charge, the elements of the offence, or whether any conduct of the plaintiff amounted to the offence charged, it might be that the court would more easily come to the view that the plea of guilty did not constitute an admission of all of the elements of the offence notwithstanding the plaintiff’s antecedents and his knowledge and familiarity with the criminal process. If the plaintiff is asserting that as a result of legal advice he was confused at the time of the plea of guilty, again the issue will probably be whether the plaintiff entered the plea of guilty from a consciousness of guilt or intending it to be an admission of the elements of the offence charged against him.

36    If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant’s own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty: Sewell above at [34].

37    But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it.

38    An admission of guilt by a plea in open court is not necessarily inconsistent with instructions to a solicitor that the defendant is in truth not guilty of the offence. There is a discussion upon the subject of pleas of guilty by a person who asserts that he or she is not guilty of the offence in R v Allison (2003) 138 A Crim R 378 at 384 under the heading ‘I am not guilty but I’ll plead guilty’. In that part of his judgment Jerrard JA considers the obligations upon counsel to obtain instructions in a situation where an accused insists on pleading guilty but nevertheless denies the offence. Whether there is anything of relevance to the disposal of the application in the present case is a matter for the magistrate hearing the application. But the case emphasises that the issue is whether the defendant when entering the plea of guilty understood that the plea was an admission of his guilt of the offence charged.

39    I should also point out that not only does a defendant bear the onus of proof in relation to an application to withdraw a plea of guilty, he must establish ‘a good and substantial reason for the Court taking that course’: Sewell at [39]. It goes without saying that the fact that the defendant asserts he is not in truth guilty of the offence is not itself a ‘good and substantial reason’ for allowing the application’.”

  1. In Hunter Quarries Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326, the Court (at [54]-[55]) noted the following further principles where application is made to withdraw a plea of guilty:

“54   … when a person enters a plea of guilty, that person admits to all of the elements of the offence (at least to the minimum level necessary for a conviction) and the conviction will not be set aside unless it can be shown that a miscarriage of justice has occurred; R v Chiron [1980] 1 NSWLR 218.

55   The rarity with which this Court grants leave to withdraw the plea of guilty at trial is, in part, caused by the public interest in the finality of proceedings and because the plea, itself, is an admission of all the minimum elements of the offence: Reg. v O’Neill [1979] 2 NSWLR 582. Ordinarily, a change of plea will be allowed only where the plea itself is impugned.”

Principles to be Applied on Sentence Appeal Based Upon Alleged Incompetent Legal Representation in the Sentencing Court

  1. It is appropriate to set out, as well, the principles to be applied where a sentence appeal is based upon a claim of incompetent legal representation before the sentencing court. In Tsiakas v R [2015] NSWCCA 187, Beech-Jones J (Leeming JA and myself agreeing) said at [42]-[45]:

“42   In some circumstances the incompetence of Counsel acting for an accused person at a trial may be of such a kind that it gives rise to a miscarriage of justice justifying intervention by this Court. In such cases what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd v R [2006] HCA 9, 80 ALJR 614 at [24] per Gummow and Hayne JJ; ‘Nudd’; TKWJ v R [2002] HCA 46; 212 CLR 124 TKWJ at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J; ‘TKWJ’).

43   The demonstration of a ‘miscarriage of justice’ is the third basis for setting aside a conviction referred to in s 6(1) of the Criminal Appeal Act 1912. Even though it is not a statutory basis for interfering with the exercise of a sentencing discretion, a number of decisions of this Court have adopted that test and the associated discussion in Nudd and the other cases on the same topic as applicable to applications for leave to appeal from sentence (eg Raymond John Munro v Regina [2006] NSWCCA 350 at [24] to [25] per Beazley JA with Sully and Hislop JJ agreeing; Puan v R [2009] NSWCCA 194 at [28] per Howie J, with whom Hodgson JA and Fullerton J agreed, and [54] and [55] per Fullerton J; Garland v R [2009] NSWCCA 217 at [26] per McCallum J, with whom McClellan CJ at CL and Howie J agreed). In effect, these decisions appear to treat a conclusion that a miscarriage of justice of this kind was occasioned by the conduct of an offender’s legal representative as equivalent to a finding that there was a denial of procedural fairness. The affording of procedural fairness is an ‘immutable characteristic’ of a court, including a court exercising a discretion to impose a sentence (Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [194] per Gageler J). The establishment of a breach of procedural fairness in the course of sentencing proceedings is a basis for interfering with the exercise of the power to impose a sentence.

44   With both appeals against conviction and sentences, it is not sufficient to warrant intervention to simply point to some failing, even a gross failing, of the legal representative who appeared during the sentence proceedings. In conviction appeals, where incompetence to the relevant standard is demonstrated, the Court considers whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24]). In sentence appeals an analogous principle applies. Thus this Court has considered whether ‘compelling material was available but not tendered, or its significance not appreciated’ (Pym v R [2014] NSWCCA 182 at [75] per Fullerton J, with Hoeben CJ at CL and Price J agreeing; ‘Pym’), whether material of ‘significance’ was not presented (R v Abbott (1985) 17 A Crim R 355, 356 per Street CJ) or whether the sentencing court was deprived of a consideration of an offender’s circumstances (Munro at [25] per Beazley JA). However, it has also been said that ‘it will be a very rare case’ that a miscarriage of justice will have occurred ‘simply because of a defect in submissions made to a sentencing judge by defence counsel’ (Puan at [55] per Howie J). Again these observations reflect the approach adopted with complaints of a denial of procedural fairness namely that ‘[f]airness is not an abstract concept. [it] is essentially practical’ and that ‘the concern of the law is to avoid practical injustice’ (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ).

45   The application of these principles is illustrated by the facts in Pym in which Counsel for the offender failed to tender a number of reports from a psychiatrist the last of which stated that he committed the offences in an ‘altered state of consciousness’ (Pym at [9]). At the hearing of the application for leave to appeal in this Court the Crown tendered reports from its own psychiatrist which expressed a different opinion (Pym at [11]). The Court did not determine the ‘question of the weight that might have [ultimately] been attributed by the sentencing judge to the unpresented psychiatric material’ (Pym at [76]) but was nevertheless satisfied that the further material was of such substance that it warranted the conclusion that the sentencing court had proceeded ‘on the basis of incomplete information’ (Pym at [84]). The proceedings were remitted to the District Court for a ‘fresh sentence proceeding’ (Pym at [85]).”

Chronology of Proceedings in the District Court

  1. What follows constitutes a chronological account of events concerning the Applicant’s proceedings in the District Court. In the main, there is limited dispute as to what happened with areas of controversy relating more to why particular things were done or not done.

  2. The chronological account in this part of the judgment is largely uncontroversial. I will make findings concerning the credibility and reliability of accounts given in controversial areas when determining the conviction and sentence appeals later in this judgment.

  3. The Applicant was arrested and charged on 23 February 2017 and remained in custody thereafter bail refused.

  4. On 8 November 2017, the Applicant was committed for trial from the Burwood Local Court to the District Court with respect to the charges referred to at [5] above, together with four counts of having sexual intercourse without consent contrary to s.61I Crimes Act 1900 (which were Counts 9, 11, 12 and 14 on the first indictment). All of the charges (apart from the s.314 Crimes Act 1900 charge) related to the same complainant, FF.

  5. The matters were listed for trial at the Sydney District Court commencing 8 October 2018, but the trial was not reached and was stood in the List pending the availability of a trial Judge.

  6. On 11 October 2018, the matter was adjourned until Friday, 12 October 2018.

  7. On 12 October 2018, the Applicant’s trial came before his Honour Judge Norrish QC who was engaged in another unrelated trial so that this trial was adjourned until Monday, 15 October 2018.

  8. On 15 October 2018, the matter was adjourned to 16 October 2018. On 16 October 2018, on the application of the Applicant, Count 5 on the indictment (the s.314 Crimes Act 1900 charge) was severed from the indictment: R v Samandi [2018] NSWDC 397.

  9. Following the ruling on 16 October 2018, the Applicant gave instructions to Mr Brasch, his counsel, and Mr Abbas, his solicitor, to seek to negotiate a plea arrangement with the Crown. The Applicant provided the following written instructions dated 16 October 2018 (affidavit of Mr Abbas, Annexure B):

“I ALI SAMANDI hereby instruct my legal team, Mr Abbas and Luke Brasch:

1.   to explore with the DPP any options of a plea bargain.

2.   I no longer wish to pursue the subpoenaed material from Tamborine Police Station relating to the incident in QLD.

3.   I have given access to my Facebook and email and I wish you to access my Facebook and email to access photos and videos of myself and [FF] between December 2015 and February 2017. I understand that my legal team were not able to access that material due to the passwords being wrong.

4.   I have seen the subpoenaed material and I am content with it.

[signed Ali Samandi]

5.   I instruct my legal counsel to make a plea offer to DPP that I accept the assault charges and the false accusation made against police and the malicious damage and put the common assault allegation on a form 1.

[signed Ali Samandi].”

  1. The Applicant admitted in evidence in this Court that his signature appeared after the fourth paragraph of the written instructions and that he wrote the fifth paragraph and then signed and dated the document.

  2. The offer was made to the Crown by the Applicant’s lawyers in accordance with his instructions.

  3. The Crown responded on 17 October 2018, rejecting the proposal that any offences be taken into account on a Form 1 under s.32 Crimes (Sentencing Procedure) Act 1999.

  4. On 17 October 2018, the Applicant was arraigned and pleaded not guilty to each of the 14 counts on the first indictment. A jury was empanelled and his trial commenced with the Crown Prosecutor embarking upon his opening address. At the conclusion of the day, the trial was adjourned to continue on 18 October 2018.

  5. The Crown indicated a preparedness to accept a plea arrangement where the Applicant pleaded guilty to all counts (including the offence on the s.166 certificate) and with the Crown not proceeding further on the four counts of having sexual intercourse without consent contrary to s.61I Crimes Act 1900, each of which was punishable by a maximum penalty of imprisonment for 14 years with a standard non-parole period of seven years. The Crown did not agree with any offence being dealt with on a Form 1.

  6. At the commencement of proceedings on 18 October 2018, the trial Judge was informed in the absence of the jury that there had “been some developments” with counsel seeking a little time to take steps to “resolve the matter” (T101, 18 October 2018).

  7. His Honour Judge Norrish QC took steps to ensure that the Applicant was aware of what was happening (T102-3):

“HIS HONOUR: Mr Samandi knows what's going on?

BRASCH: He does.

HIS HONOUR: Mr Samandi, if I may speak to you, it may be a little bit out of turn, your counsel needs to have a conference with you. You understand that. I'll ask the Corrective Services officers - is it possible for that to be done here?

CORRECTIVE SERVICES OFFICER: However you wish. We'd prefer to take it downstairs.

HIS HONOUR: You would. Right. I don't want to compromise your situation. I just wondered if it was easier for Mr Brasch to talk to his client here. The problem is he doesn't get privacy, that's the first thing. Anyway, he'll have to go downstairs to the legal rooms downstairs.”

  1. After informing the jury there would be a delay, his Honour said in the absence of the jury (T105):

“HIS HONOUR: Thank you, Mr Crown. I'll let you gentlemen get down to what you need to do. Mr Samandi, do you mind going downstairs, please, with the officers and Mr Brasch will come down and see you as soon as he can. Should I come down at quarter past 11, or maybe - I look, I'll come down at half past 11, how's that?

BRASCH: Certainly, your Honour. I mean, if things proceed as I expect, then things will need to be done before the jury is brought back in.

HIS HONOUR: Well, I'll come down at quarter past 11. I told the jury to go back to the room at quarter past 11, but I said we may not be able to start before half past 11.

BRASCH: Yes, I think if your Honour comes back at quarter past 11, and we'll hope we will be able to proceed then.”

  1. On 18 October 2018, the Applicant signed and dated a document headed “Instructions” which stated (affidavit of Mr Abbas, Annexure C):

“I, Ali Samandi, hereby confirm and direct my solicitor, Fadi Abbas, that I wish to enter pleas of guilty in relation to my charges:

Count 1: Common assault (s 61 of the Crimes Act 1900)

Count 2: Common assault (s 61 of the Crimes Act 1900)

Count 3: Assault occasioning actual bodily harm (s 59 of the Crimes Act 1900)

Count 4: Assault occasioning actual bodily harm (s 59 of the Crimes Act 1900)

Count 5: Assault occasioning actual bodily harm (s 59 of the Crimes Act 1900)

Count 6: Assault occasioning actual bodily harm (s 59 of the Crimes Act 1900)

Count 7: Common assault (s 61 of the Crimes Act 1900)

Count 8: Assault occasioning actual bodily harm (s 59 of the Crimes Act 1900)

Count 10: Assault occasioning actual bodily harm (s 59 of the Crimes Act 1900)

Count 13: Property damage (s 195 of the Crimes Act 1900)

Count: Making false accusations (s 314 of the Crimes Act 1900)

In doing so, I agree that I have been explained and understand the police facts sheet, provided with advice from my solicitor in relation to the elements of the offence(s) and maximum sentence I can receive, the relative strength of the prosecution case against me, and the options at my disposal..

l understand that by virtue of my plea, I will be found guilty and convicted of the offence. I understand that the matter will be committed to for sentencing proceedings and that a imprisonment is inevitable.

I confirm that I enter the plea of guilty at my own free will.”

  1. As well as signing and dating those instructions, the Applicant signed each page of the “Agreed Facts on Sentence” (affidavit of Mr Abbas, Annexure C).

  2. After the short adjournment, the parties returned to the Court and his Honour enquired as to the position, again in the absence of the jury (T105):

“HIS HONOUR: Have you had enough chance to speak to your client?

BRASCH: I have. Thank you very much.

HIS HONOUR: And what's going to happen?

BRASCH: The mechanics of it I'll leave to my friend at the moment but essentially there will be pleas of guilty to certain counts in satisfaction of the indictment.”

  1. Discussion ensued as to what was to happen, after which his Honour spoke to the Applicant to ensure that he understood the position (T109):

“HIS HONOUR: Mr Samandi, do you understand?

ACCUSED: I understand.

HIS HONOUR: The Crown Prosecutor is going to re-present the indictment that was presented yesterday when we chose the jury and you're going to be asked to plead guilty or not guilty to a number of the charges but not the charges in relation to the allegations of sexual intercourse without consent. Do you understand that? And if you plead guilty to the remaining charges we're going to discharge the jury. Do you understand that?

ACCUSED: Yeah.

HIS HONOUR: And there will be no further proceedings in relation to the sexual intercourse without consent matters. Do you understand that?

ACCUSED: Yes.

HIS HONOUR: Fine. Thank you.”

  1. After further discussion, his Honour explained to the Applicant what was to happen next (T112):

“HIS HONOUR: Do you understand that, Mr Samandi?

ACCUSED: Yes.

HIS HONOUR: I'm sorry. The lawyers start talking sometimes, even for the person with the most interest in the case, it can be a baffling and difficult experience, but what I'm proposing is the Crown will re-present the indictment previously presented. I will take you through the indictment. You'll enter your pleas again, as you wish, and then we'll get another indictment back and I'll get your pleas in relation to that and then I'll discharge the jury but the jury won't be discharged until that occurs because the Crown won't indicate to me, until everything is done, that everything is in full satisfaction of the indictment. Is that right?

CROWN PROSECUTOR: Yes, thank you. I re-present the indictment dated 17 October 2018.

HIS HONOUR: Can we send a message up to the jury, we apologise, we'll be another 25 minutes? Thank you. Mr Samandi, do you mind just standing up for a moment? It's going to take a little time to do this. Is there a microphone in front of where you are there?

ACCUSED: Yeah, I can hear you.

HIS HONOUR: Sorry?

ACCUSED: I can hear you.

HIS HONOUR: No. It's more a question of if we can hear you. Just sit down for the moment. You don't need to stand up. This is going to take a bit of time but speak up so your voice can be heard.”

  1. In compliance with s.157 Criminal Procedure Act 1986, the Applicant was then arraigned in the absence of the jury upon two indictments containing a total of 11 counts in relation to which he entered a plea of guilty to each of the matters referred to at [5] above (T112-115, 18 October 2018).

  2. The jury was then brought into Court and, in accordance with s.157(1) Criminal Procedure Act 1986, was discharged from giving a verdict (T116-117). In the course of his explanation to the jury as to what had happened, his Honour stated that he had accepted the pleas of guilty (T116.31-38).

  3. A number of documents were tendered on sentence including Agreed Facts (Exhibit 1) and the Applicant’s criminal history (Exhibit 2). As noted earlier (at [52]), the Applicant had signed a copy of the Agreed Facts (affidavit of Mr Abbas, Annexure C).

  4. The proceedings were adjourned for a sentencing hearing on 7 December 2018 (T117-119).

  5. On 7 December 2018, Mr Jiang of counsel appeared for the Applicant in place of Mr Brasch. The Applicant had requested his solicitors to brief new counsel.

  6. At the commencement of the proceedings on 7 December 2018, Mr Jiang asked for time to confer with the Applicant and his Honour stood the matter down for that purpose (T3, 7 December 2018).

  7. During the conference on 7 December 2018, Mr Jiang and Mr Jamal, the instructing solicitor, state that they discussed with the Applicant whether he wished to proceed with the sentencing hearing given the absence of certain medical material referred to in the psychologist’s report of Ms Ann-Marie De Santa Brigida dated 5 December 2018. Ms De Santa Brigida had assessed the Applicant on 18 November 2018 for the purpose of preparing a report for the sentencing hearing. According to Mr Jiang and Mr Jamal, the Applicant wished to proceed that day (affidavit of Mr Jiang, Annexure E). The Applicant signed a document containing the facts concerning the s.166 certificate offence.

  8. When the proceedings resumed in Court, the Applicant pleaded guilty to the offence on the certificate under s.166 (T5-6, 7 December 2018):

“CROWN PROSECUTOR: There is some further material in the Crown tender bundle, at tab 3. Your Honour sees there's the reference to the 166 matter, as such.

HIS HONOUR: Yes. What is that? That is a related matter, is it? It's not a backup matter?

CROWN PROSECUTOR: It's a related matter, yes.

HIS HONOUR: Still, I've got to get a plea from the accused, haven't I?

CROWN PROSECUTOR: Yes, your Honour, and there are agreed facts in that regard, as well. I tender those agreed facts.

JIANG: No objection.

HIS HONOUR: No, I'll get the plea from the accused first and then I'll receive the facts, when I've got the plea. This is a related matter, to be dealt with under s 167 of the Act; is that right?

CROWN PROSECUTOR: That's so.

HIS HONOUR: Mr Samandi, you are charged with an offence that you, between 16 June 2017 and 19 June 2017, at Sydney, did knowingly contravene a prohibition or restriction specified in an apprehended domestic violence order. Do you plead guilty to that charge?

OFFENDER: Yes.”

  1. The sentencing hearing proceeded with the Crown tendering further documents including a victim impact statement from FF dated 29 November 2018.

  2. The Applicant did not give evidence at the sentencing hearing. A number of documents were tendered in the Applicant’s case on sentence including a handwritten letter of apology from the Applicant dated 6 August 2018 and the report of Ms De Santa Brigida dated 5 December 2018. Also tendered in the defence case was a typed letter from the Applicant’s mother dated 7 December 2018 to which further reference will be made later in this judgment (Exhibit 4).

  3. Written submissions were furnished on sentence by the Crown and Mr Jiang (Exhibits 5 and 6). Oral submissions were made on sentence at the end of which the matter was adjourned to 13 December 2018 for sentence.

  4. On 11 December 2018, Mr Jiang and Mr Jamal had a telephone conference with the Applicant in which each of the lawyers state that the Applicant was advised to seek an adjournment on 13 December 2018 to allow further material to be sought concerning sentence. Mr Jiang and Mr Jamal each state that the Applicant rejected this advice and gave instructions that he wished to proceed with sentence to be passed on 13 December 2018. I will return to this issue later in the judgment.

The Sentencing Remarks of His Honour Judge Norrish QC on 13 December 2018

  1. At this point, it is appropriate to mention findings made by his Honour Judge Norrish QC in his sentencing remarks following the Applicant’s pleas of guilty to the charges identified earlier in this judgment. This will assist an understanding of the facts of the offences, for the purpose of the sentence appeal, as well as allowing readers to observe the Applicant’s interactions with the sentencing Judge as the delivery of the sentencing remarks proceeded, an aspect which relates to the conviction appeal.

  2. His Honour commenced the sentencing remarks in the following way (ROS1):

“The prisoner Ali Samandi appears today before the Court in relation to a number of offences that he pleaded guilty to in circumstances where, in October, he had come before me for trial in relation to those matters to which he eventually pleaded guilty and other allegations which are not pressed by the Crown.

There was an application before the trial started to sever one count from the indictment, that is, an allegation that now is placed on a second indictment of making a false allegation to the New South Wales Police on 4 May 2016 in circumstances where he knew that the subject of the investigation were innocent of the alleged offence. I ordered that that count be separated from the other counts in the indictment and it was following upon that that ultimately the prisoner pleaded guilty.”

  1. After identifying the charges to which the Applicant pleaded guilty, his Honour said with respect to the Applicant’s pleas of guilty (ROS2-3):

“The timing of the plea of the prisoner was at a date after the matter was listed to commence for trial. I appreciate the plea winds up being a product of negotiations between the parties in the context of the victim impact statement indicating that the complainant did not have the strength to carry on with the much more serious allegations in many respects that were no longer pressed by the Crown. I have determined that I should give the prisoner a discount of 10% upon the otherwise appropriate sentence for each of the offences requiring sentence to recognise the utilitarian benefit of those pleas of guilty. Those pleas of guilty could have been entered at an earlier time. Particularly in light of the fact that I am also required to consider an offence pursuant to the Crimes (Domestic and Personal Violence) Act 2007, pursuant to s 14(1) of that Act, of contravening a prohibition or restriction in an apprehended domestic violence order that was committed between 16 June 2017 and 19 June 2017 when the prisoner wrote to the victim, his wife, imploring her to withdraw the allegations against him, particularly, as I understand it, in the face of denial of any sexual assault. But admitting in the course of that letter to having been violent towards her in the past, a rather general admission I hasten to say. But it is the fact, as the statement of facts reveal, some of the offences with which I am concerned have supporting evidence available to the Crown. The cases were not entirely dependent upon the truthfulness of the complainant.

The offence on the s 166 certificate to which I have referred is a related offence and as I understand it requires a discrete sentence. The sentence I propose to impose for that offence will be a term of imprisonment of five months acknowledging a 10% discount. With the sentence rounded down to the nearest month, that sentence is to run concurrently with the sentences I have imposed in relation to the matters on indictment.”

  1. His Honour then recited the facts of the offences utilising the Agreed Facts which had been signed by the Applicant. His Honour commenced with Counts 1 to 3 (ROS3-5):

“The facts of the matters with which I am concerned require some recitation to have an understanding of the scale of the offending of the prisoner. The prisoner was born in Iran but is an Australian citizen. He met the complainant/victim in Iran and they began a relationship which ultimately led to the complainant arriving in Australia on 16 December 2015 after the prisoner had returned to Australia. They lived together in Sydney and in other places including Queensland. There is in the statement of facts, allegations of alleged violence against the victim in Queensland. The detail of that is not provided to me and I have chosen to put that aspect of the facts aside in the absence of any particularity.

It is significant, in my view, that the complainant having arrived on 16 December 2015 was first assaulted the day after she arrived. The detail of that assault is set out in paras 5 to 6 of the ‘agreed statement of facts’ on sentence. It would appear that the prisoner became angry because the victim would not cook for the accused’s father. He pushed her in the chest and slapped her to the left side of the face causing her to fall against a wall breaking an intercom system attached to the wall. This occurred in the view of the parents of the prisoner.

I pause for a moment to point out that part of the material available to me is a reference from the prisoner’s mother which I will refer to shortly when I deal with the subjective case. But it is quite clear to me in the context of considering her reference on behalf of her son that she must have been aware, having regard to the detail of the facts available to me, of some of the attacks upon the victim over the period of time of the relationship between the prisoner and the victim.

Count 2 is a common assault allegation occurring in February 2016. This was in the circumstance of the victim driving the prisoner to Liverpool Street Sydney. The prisoner, again, would appear to have lost his temper with the victim as he had done in relation to count 1. A common feature of the assaults upon the victim was quite unnecessary use of force in response to minor matters. Displaying a complete lack of control by the prisoner in respect of his ability to resist causing harm to the victim. In Liverpool Street Sydney, whilst in the motor vehicle that the prisoner was being driven around in, the prisoner grabbed the back of the complainant’s head and forced her head onto the steering wheel. He did this three times and the victim felt pain in her head. He also on the way back to Castle Hill, where he was living at the time, pushed her head and pulled her hair.

Count 3, an assault occasioning actual bodily harm allegation, concerned him losing his temper because the victim had done what she had been asked to do and that is to buy groceries out of $300 given to her by the prisoner. When she had returned home, having spent $250 of the $300, and when she explained what she had done with the money that had been earlier given to her, the prisoner became angry, threw the groceries around the house, put both his hands on the complainant’s chest and pushed her. She fell to the floor and landed on her back, he slapped her arms. She held her hands over her face to protect herself, he closed his right hand into a fist and punched her to the left side of the face connecting with her left eye, she felt pain and dizziness. He insulted her, he pulled her hair and then at one point grabbed her hair and pulled her to the front door by the hair and left her there. The victim rang triple-0 and spoke to a male operator and said to the operator, ‘I really need help.’ The prisoner took the phone from the victim and turned it off. The next day police came to the unit, setting a pattern for subsequent behaviour of the prisoner seeking to cover up the conduct displayed to the victim. The prisoner would not let the victim speak to the police. The prisoner gave a false explanation to the police as to the circumstances of the distress of his partner. The victim took photographs which are annexed to the statement of facts showing a bruise around her left eye. They went, the two of them, to Queensland in April 2016.”

  1. The sentencing Judge then outlined the facts of Count 4 and the related offence under s.314 Crimes Act 1900 which occurred on 4 May 2016 (ROS5-8):

“Counts 4 and 5 arise out of events in May 2016. By this stage, the prisoner and the victim had moved to premises away from Castle Hill in North Parramatta. On 2 May 2016, the prisoner contacted the victim by phone as she was travelling by bus, he had forgotten his keys to get into the unit. The victim had to come back and meet him at a bus stop. For some reason, best known to himself and certainly not explained in any of the psychological material made available to the Court, he started yelling at the complainant causing her fear and to run away. He caught up with her, he pushed her and held her by the upper arms. She asked not unreasonably as he swore at her, ‘Why are you doing this to me?’ They eventually went back to the unit, the prisoner was allowed in, he used his fists then to hit the complainant at the back of her head such was his repayment of her assistance to him. The victim cannot recall how many times she was hit to the back of her head but it was more than twice. He kicked her in the right thigh and the left side of her lower back. He kicked her two or three times. She felt lumps on the back of her head and had pain in her right thigh and the left side of her lower back. It was this assault which led to the intervention of two members of the public who called the police.

The police came to the premises to investigate what had been reported as a public disturbance presumably a woman in distress. The prisoner told the victim not to tell the police anything other than her mother had just died. Of course, her mother was still alive at that particular time. The police eventually got to speak to the complainant in her bedroom and asked her what had happened. There was a male police officer and a female police officer. The complainant told the police as instructed by the prisoner that her mother had died and she was upset, the police observed that the victim was wearing clothing that covered her entire body including her arms and her legs. Ultimately, a total of six police officers attended, five males and a female. After they had left the premises the prisoner demanded the victim get ready as he wanted to go to Parramatta Police Station to lodge a complaint against the police who had attended the unit. It was after this as they walked to the Parramatta Police Station, the victim saw the prisoner pick up a brick from a park along the way and he hit himself on the top of the head with it. He also purposefully ran into a number of items or objects as they walked to the police station. He then ran off. She went back to the unit. The prisoner came back to where they lived. She observed that his right eye was swollen. He told the victim that he had gone to the police station to lodge a complaint but was told to come back in the morning. He asked the victim to take photographs of these injuries he had inflicted upon himself, she did so with the use of a mobile phone. The victim, herself, had pain to the back of her head, right thigh and her back was aching. She did not notice any bruising on her body at that stage but later, the next day as often happens with bruises, they emerged on her body. There was a bruise on her upper left arm, her left side rib area and on her thighs. They were red and purple and tender to touch.

On 4 May, the prisoner did what he promised to do, that is to return to the Parramatta Police Station and spoke to Inspector Hansford. I do not propose to set out the full detail of what he said to Inspector Hansford other than to indicate that he told the Inspector many lies about the character of the police attendance upon his premises blaming the police for the injuries that he had suffered. The Inspector indicated that there would need to be an investigation, the prisoner was told that it was important that he tell the truth if he was to make a complaint against police officers and provide sufficient details. The prisoner undertook to send him an email with relevant details, contact information was provided to him. The prisoner was in company with the victim at this particular time. When they got back to the unit, the prisoner took photographs of the bruises that he had inflicted on the victim. The prisoner told the victim that he was going to ‘Falsely tell the police that the bruises that he had caused to the victim were caused by the police officers who had attended the unit the previous day.’ Those photographs are annexed to the statement of facts.

It is to be observed as relevant to the objective seriousness of this offending that the prisoner did not go further with his complaint. He never sent an email or letter to Inspector Hansford. But the allegation in the context of trying to cover up his own crime is serious enough.”

  1. His Honour continued the factual narrative, including the marriage of the Applicant to FF, reciting the facts of the s.59(1) offence which is Count 5 (ROS8-9):

“The prisoner and the victim returned to Queensland in June/July 2016. In late August 2016, the prisoner and victim flew back to Sydney and were married in Sydney. The prisoner’s mother and one of the offender’s father’s friends came to witness the marriage. The prisoner and the victim returned to Queensland in September.

The further assault occasioning actual bodily harm which is reflected in count 5 in the indictment was committed in September 2016. By this stage, the prisoner and the victim were back at the prisoner’s parent’s premises in Castle Hill. The prisoner was having an argument with his mother about money. The victim started to leave the unit as she wanted to speak to her parents on her phone. She had her handbag over her shoulder. The prisoner tried to stop her leaving, he pushed her, he tried to grab her, he then grabbed the bag off her shoulder. She continued to walk away. The prisoner then used the complainant’s handbag to hit her over the top of her head. The prisoner then used the car keys that were in his possession to scratch the back of the complainant’s arm, he pushed the key into her skin and dragged it down the back of her arm for approximately ten centimetres. The skin was cut causing bleeding. The complainant then walked back into the prisoner’s parent’s unit, she washed her arm and used antiseptic to clean the cut. She told the prisoner she was going to call the police. The prisoner and the mother told her not to call the police. The prisoner’s mother told her to calm down. She has a scar on the back of her arm from that scratch with the car key which is displayed in the photograph. At about 8.30pm on the day the prisoner scratched the complainant she received a phone call from Castle Hill Police Station informing her that they had her handbag. After being given her handbag at the police station, she was asked some questions about domestic violence. The complainant is reported in the statement of facts to have been too scared to make a statement at this time.

The prisoner and the victim returned to Queensland in October/November 2016 and there are certain allegations made against the prisoner by the complainant in that period of time. But what is significant, as it relates to the way in which the Crown case was to be presented at trial as I understand it, is that whilst in Queensland the victim rang a domestic violence crisis support line and explained her situation. A taxi was sent to where she was living to take her to a refuge and she went to the refuge, arriving at 1pm on the day of this call. She ultimately returned to the house that she was living at with the prisoner. The victim on this occasion also rang triple-0 again, police arrived at the house, the details of what happened then I am not provided with.”

  1. His Honour turned to the further s.59(1) offence in Count 6 (ROS9-11):

“The further count of assault occasioning actual bodily harm represented in count 6 in the indictment occurs in December 2016. The prisoner was being driven by the victim. The prisoner got out of the passenger’s seat and walked around to the driver’s seat and for no apparent reason tried to force his way into the car, he opened the driver’s side door a little, the victim placed her right hand on the doorframe apparently trying to stop him, the prisoner then pushed the door jamming the complainant’s fingers in between the doorframe and the car. She felt immediate pain to her right index finger and the facts at a later point go on to describe the character of that injury which was not properly examined or medically treated for some time afterwards. During the course of this struggle, the prisoner began punching the complainant to the top of her head, punching her three or four times. She was crying and attempting to get hold of the prisoner during this period of time.

After the prisoner stopped punching her in the head he punched her right index finger. She felt a sharp pain and was unable to straighten her finger afterwards. The prisoner pushed the complainant over into the middle seat of the van, and he then sat in the driver’s seat. He reached over and opened the passenger side door, and used both his legs to try and kick the victim out of the van. She grabbed hold of the inside door handle with her left hand and placed her left foot on the ground outside the van to prevent herself falling from the van.

So it goes on in relation to this particular event which occurred over quite a number of minutes. The victim eventually was able to free herself from the car and was sitting in a park. He drove around to where she was sitting. He persuaded her to come back to his parent’s place at Castle Hill. The victim when she went inside to the unit told the prisoner’s mother that her finger was sore because of the prisoner. The prisoner’s mother told the prisoner to take her to a medical centre. The facts go on to explain that when she went to the medical centre she was asked for $60 for payment of a fee. The prisoner refused to pay the money so she could receive medical treatment.

A few days later whilst at the shopping centre in Castle Hill the victim noticed bruises on her legs and arm from the previous assault. She showed the prisoner the bruises, the prisoner laughed when she showed him the bruises--.”

  1. At this point in the sentencing remarks, the Applicant interrupted. The transcript of the sentencing remarks continued as follows (ROS11):

“OFFENDER: I don’t want to hear it. I didn’t do it.

HIS HONOUR: Just be quiet.

OFFENDER: No I didn’t do it.

HIS HONOUR: Just be quiet. The prisoner laughed and decided to take some photographs on the complainant’s phone. Those photographs are available as annexures to the statement of facts.”

  1. His Honour turned to the s.61 offence in Count 7 (ROS11-12):

“The common assault matter, that is Count 7, occurred in December 2016. There was an occasion when the prisoner went to the Roads and Maritime Services Office in Castle Hill. There was some dispute with the personnel then. The prisoner drove the victim back to the unit at Castle Hill. There was some altercation with a male person walking in the street, the neighbours came out, apparently either photographing or filming the incident. The prisoner and the victim got out of the van, and went into an elevator as I understand it in the unit block. As they got out of the elevator the prisoner pushed the complainant and began to swear at her. He grabbed her handbag out of her hand and her iPhone out of her other hand and hit her on the head with the handbag twice and made insulting statements about her. He challenged her to go to the police to complain about him.

The prisoner’s mother again was an eyewitness to the sequelae of this event. The mobile phone of the victim had been taken away from her. The victim had to ask the mother to provide her with a mobile phone.”

  1. The sentencing Judge recited the facts of Count 8 (ROS12):

“Count 8 is a count of assault occasioning actual bodily harm occurring two or three days after the above events. Again the prisoner and the victim were travelling in a motor vehicle. She was driving. The prisoner told her he was sick of her driving. He got out and tried to pull her out of the van. She lost her footing. She tried to run away without her shoes. A passer-by saw her, obviously in a distressed state and offered to provide assistance to her. The victim got into the man’s car sitting in the front passenger seat. The prisoner came up to her and pulled her from the car and demanded she go back to the vehicle that they had been previously driving in, which she did. He drove her to his parent’s unit. When they got out of the van she remained in the driver’s seat for some time. She had complained to him that she did not want to be with him anymore. The complainant rolled down the window, stuck her head out and begged the prisoner to stop yelling because the neighbours would hear them and might call the police. He walked over to the open window, formed a fist with his right hand and punched her to the left side of the head. She immediately felt pain to her face. The prisoner went upstairs to his parent’s unit, the victim remained in the van for a few hours. When she finally went upstairs, she looked at her face and saw that her left cheek was swollen.”

  1. His Honour turned to the s.59(1) offence in Count 10 and the s.195(1)(a) offence in Count 13 (ROS12-14):

“The prisoner and the victim moved to Canterbury Road, Belmore in January 2017, and it was whilst they were living at that address that Count 10, an allegation of assault occasioning actual bodily harm, was committed. There was a confrontation inside their unit over the circumstances of the victim coming to Australia and the contact the prisoner had had with his ex-wife. Then prisoner said words to the effect, ‘you don’t trust me’. He stood up, took one step towards the victim, created a fist with his right hand and punched the complainant in the chest in the area where her heart was. The victim felt a lot of pain and she could not breathe. He then used the same hand and punched the complainant in the mouth. She could then taste blood in her mouth and she fell to the ground and she was bleeding. Sometime after that the victim got off the floor and began to walk towards the front door of the unit. When she got near the front door of the unit the prisoner grabbed the back of her neck and pushed her neck down. He then punched the complainant in the back of the head. She used her arms to cover the back of her head, he punched her three or four more times to the arms and hands. She then felt a sharp pain to her left thumb. The complainant fainted. She could not see anything. Her left thumb was later diagnosed as being fractured and the details of those injuries are set out in the statement of facts. When she regained her consciousness she noticed her hand and wrist were swollen. She asked the prisoner to take her to the doctor, and he laughed. He said ‘Nothing happened to you, go talk to the police, I will be released on bail’. He told the victim he did not need her any more.

The victim remained in the premises for a number of hours, she was in a great deal of pain and eventually took some paracetamol. On 15 February 2017 the complainant, or victim, drove herself and the prisoner to a medical centre in Campsie. She there saw a particular doctor who examined her wrist. She was told she needed an X-ray. The prisoner began screaming at the victim in Persian saying ‘There is nothing wrong with you, you are just making it up’. She started to cry. She asked the prisoner for her mobile phone but he kept it in his pocket. He told her he had to leave. The doctor explained to the victim that she needed plaster on her wrist but was unable to do that at the medical centre and referred her to see a physiotherapist so that her wrist could be properly restrained. The prisoner and the victim left the medical centre. The doctor observed the prisoner to become angry and shout at the victim. He also noticed the victim crying. They went to a bank in Beamish Street, Campsie and returned to the van. There was another altercation. He would not give her her mobile phone. He in fact at one point threw it towards the victim. The phone landed on the ground and smashed. I examined the broken phone when the matter was last before me. The victim examined the phone and it was obviously damaged. Later on the prisoner drove the victim and himself to the Campsie Medical Imaging Centre on Beamish Street. The victim had her arm X-rayed. She went to another medical centre where a plaster was put on her left arm and there is a photograph of her with her arm plastered.”

  1. The sentencing Judge then referred to the complainant’s contact with a women’s refuge and police on 23 February 2017 (ROS14):

“On 23 February 2017 the [Applicant] left the unit for a job interview. [The victim] packed up her things and ran a contact at a women’s refuge. She was taken to the refuge where police were contacted. On 1 March 2017 she went back to see the original doctor that she had seen on 15 February 2017. It had been explained to the doctor, at an earlier occasion, that she had hurt herself ‘boxing’, but she told the doctor on this occasion, free of the presence of the prisoner, that she had injured her wrist protecting herself from being assaulted by her husband on 13 February 2017. Various further X-rays were undertaken. In relation to her finger it was revealed after an ultrasound that the victim had an avulsion, that is a bone fracture where part of the bone tears away from the main bone mass of the first finger. The right index finger had an undisplaced fracture through the radial base of the distal phalanx, and the left thumb had an ulnar collateral avulsion fracture from the base of the proximal phalanx. Splinting was prescribed for both fingers for four weeks.”

  1. His Honour recounted the arrest of the Applicant on 23 February 2017 and the delivery of the letter in June 2017 which constituted the contravene ADVO offence on the s.166 certificate (ROS15):

“The prisoner was arrested on 23 February 2017 and taken into custody. He declined to be interviewed, and it was whilst he was in custody that an email was received with photographs of a letter written to her in Farsi. This letter was sent by the prisoner in breach of an existing ADVO issued as a consequence of charging the prisoner with various matters. The letter, in its full text available to me, asked her to withdraw her statement to police. It includes, as I said earlier, admissions as to physical assaults on the victim which are set out in the statement of facts.”

  1. His Honour then referred to the Applicant’s criminal history noting that it “does not entitle him to any leniency” (ROS15). His Honour said in this respect (ROS15-16):

“He is certainly, it must be fairly said, does not have convictions of the seriousness of the matters that are currently before me. As I understand it, and I note, there are no particular convictions that I am aware of that are, what might be called, domestic violence related. But he does have prior convictions for acts of violence. In 2003 he was given a s 10 bond for a common assault which was committed in February 2003. He breached that bond and was placed on a community service order which had to be extended some years later when he failed to complete it within a reasonable period of time. He has a conviction in October 2010 for driving whilst disqualified. He has convictions in 2006 for driving whilst licence suspended, relatively minor matters it must be said.

However in 2008 he was convicted at Liverpool Local Court of a number of offences committed in 2007 of obtaining money by deception and making false instrument with intent to defraud and other dishonesty charges. Ultimately in relation to those matters, when they were dealt with and it took some time for them to be dealt with, he was sentenced to various terms of imprisonment amounting to eight months with a four month non-parole period. He was convicted of assaulting a police officer in the execution of his duty, and was sentenced in August 2009 and placed on a good behaviour bond for nine months. He has a conviction for affray in October 2012 for which he was placed on a s 9 bond for a period of 12 months at the Parramatta Local Court. He has a finding of guilt resulting in the ordering of a community service order in 2016 for damaging property by fire. He has convictions for possessing a prohibited drug, one conviction in 2016 for an offence committed in August 2016 for which he was fined $400 and another conviction of possessing a prohibited drug, as I would understand it, arising out of his arrest on 23 February 2017.

I pause to point out that there has been absolutely no material produced to the court, in the facts presented by the Crown or in any objective fashion, of the prisoner committing any of the offences whilst affected by any prohibited drugs, or other substances as is the claim of the prisoner in the context of the psychological report that was prepared for him.

The learned counsel for the prisoner did point to the convictions for possession of prohibited drugs in 2016 and 2017 as being some evidence of the fact that he was a user of prohibited drugs. I am prepared to accept that he was a user of prohibited drugs. But I am not persuaded that the use of drugs of any form is a contributing factor to his offending. I certainly do not rely upon the hearsay representations of the prisoner in that regard for reasons I will set out in a moment.”

  1. The sentencing Judge then referred to a letter of apology dated 6 December 2018, which was written by the Applicant and tendered in the defence case on sentence. The Applicant said in evidence before this Court that the letter had been “dictated” to him by his lawyers. This was denied by Mr Jiang and Mr Jamal who stated that the Applicant was informed that a letter to the Court expressing regret may assist him on sentence, but that the letter had not been dictated by either of them. I will return to this topic later in the judgment. His Honour said concerning the letter (ROS16-17):

“The prisoner has provided a letter of apology to the court setting out some details of his background. He claims that he has come to a position of self-realisation whilst in custody and proposes to take a positive outlook to his life when he is released from custody. I trust that that is so. He wants to re-start his business interests. There is some evidence that he has been involved in business in a range of ways working in a carpet shop and the like. He again, as with the report prepared by the psychologist, asserts that the abuse of his wife was a result of the ‘use of anabolic steroids’. But for them he says he would not have had those ‘psychotic rage’ (sic) and ‘violent attitude’ towards ‘my estranged wife’.

He expresses his contrition and sorrow and regret for the breakdown of the relationship. He claims that he has a realisation that ‘domestic violence is evil’, and should not be accepted under any circumstances. That last aspect of his letter to the court is readily accepted by the court and must be reflected in the orders that I make, so far as sentencing is concerned, particularly having regard to the sustained and extended period of time over which the prisoner was violent to his wife.”

  1. The sentencing Judge then referred to a reference from the Applicant’s mother which touched upon aspects of his early life (ROS17-18). It should be noted that the Applicant’s mother stated in the letter that she had visited him in custody and that “Ali has apologised continually for his actions and has promised to address his actions and seek help”.

  2. His Honour then turned to the report of the psychologist, Ms De Santa Brigida, who stated that the Applicant said he had been assaulted in 2007. His Honour said (ROS18):

“This claim of the prisoner that he was assaulted and went to the hospital, and was in intensive care, made by the mother, is repeated by the prisoner in the report prepared by the psychologist. It is a very detailed report and there is a lot of interesting information in it. But the reliability of the histories upon which the report is based is very much to be doubted. The first point to be made in the context of that observation is that the psychologist sought to make inquiries of the hospital where the prisoner said he was treated and the medical practitioner that the prisoner said treated him in relation to the claimed assault when he was 22 leading to his hospitalisation. The psychologist was in fact unable to find any record held of his treatment. The report says in relation to that aspect that ‘at the time of writing this report the author was still trying to confirm these details’.

In fact in the body of the report I have just quoted she sets out the detail of the inquiries she made. The prisoner told her that he was treated at Liverpool Hospital. She said the author had sent requests to Liverpool Hospital under his name, and an alias, that they reported that there were no records matching these details. Additionally an authority release form was sent to a neurologist in Hornsby in relation to the matter but no records had been received by her.”

  1. Significantly, his Honour then said (ROS18-19):

“It is possible he was assaulted but there is no evidence to establish any organic condition arising out of any such assault that might have contributed to the prisoner’s conduct.”

  1. The sentencing Judge referred to the fact that the Applicant had not given evidence at the sentencing hearing and the significance of this to the approach to be taken to the psychological report (ROS19-20):

“Before I get to some of the detail of the report there are a couple of observations to be made. The prisoner did not give evidence on sentence. Much of the report is dependent upon the representations made by the prisoner to the psychologist, and many of the findings of the report have to be considered as being relied upon, the truthfulness and reliability of the prisoner as a historian and patient. The prisoner’s criminal history reflects upon his acts of dishonesty in the past and thus it must be said that one would approach any version he gave of matters relating to his background with some circumspection. He is not a person of such good character as to be capable of being accepted at face value. In fact I have just been recently subject to an outburst from him in the dock in which he started to deny matters that were part of the agreed facts as they were presented to me in the sentence proceedings.

But there is also considerable case law in relation to this aspect of the matter. The Crown has referred to some of the more recent cases. I need only refer to two. The case of Qutami (2001) 127 ACrimR 369 and the judgment of Smart J adopted by Wood CJ at CL in Niketic [2002] NSWCCA 425. I note in relation to Niketic of course that Howie J was one of the judges on that bench and his judgment in Palu, which I need not cite the reference for, is a well known judgment on the same issue.

  1. Apart from advice given by his lawyers, his Honour Judge Norrish QC took careful steps at several points along the way on 18 October 2018 to ensure that the Applicant understood what was happening (see [49], [50], [54] and [55] above). The Applicant then pleaded guilty to the charges in the absence of the jury in accordance with the procedure in s.157 Criminal Procedure Act 1986. The trial Judge thereafter discharged the jury and, in accordance with s.157, noted that the Court accepted the Applicant’s pleas of guilty (T116-117).

  2. The proceedings were adjourned to 7 December 2018 for a sentencing hearing. Tendered by Mr Jiang, counsel for the Applicant on that day, was the Applicant’s handwritten letter apologising to the victim and the Court which bore the date 6 December 2018 (affidavit of Mr Jiang, Annexure C). In that letter, the Applicant indicated that he wished to “demonstrate my remorse in regards to my actions”. Later in the letter, the Applicant said, “I hereby want to wholeheartedly extend my deepest sorrow to you and [the victim] for all the wrong and inappropriate actions I took and I want to illustrate my remorse by two words ‘I’m sorry’”.

  3. As noted earlier (at [63]), the Applicant pleaded guilty to a charge on a certificate under s.166 Criminal Procedure Act 1986 of contravening in June 2017 an ADVO intended to protect FF. The contravention involved the Applicant sending letters written in Farsi to the victim from a correctional centre in which, amongst other statements, he expressed his regret for what he had done to her.

  4. Also tendered in the defence case on sentence was a letter from the Applicant’s mother which stated that he had expressed his regret to her for his conduct towards the victim (see [83] above). In addition, Ms De Santa Brigida stated in her report that the Applicant “expressed his remorse for the offences”.

  5. When the sentencing Judge was passing sentence on 13 December 2018, the Applicant made a number of outbursts which included denial of some offences and a claim that he wished to reverse his pleas. This appears to be the foundation for the Applicant’s Conviction Ground 2 which asserts that his Honour erred in not allowing him to withdraw his pleas of guilty.

  6. This ground of appeal is misconceived. The Applicant had pleaded guilty to these charges after a jury had been empanelled for his trial so that s.157 Criminal Procedure Act 1986 applied. The effect of the mechanism in s.157 was to give rise to a “deemed jury verdict”, as described by Spigelman CJ in R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61 at [12]. It was not open to his Honour to consider an application for leave to withdraw the pleas of guilty in these circumstances: R v Hura at [13]; R v Kaewklom (No. 2) [2012] NSWSC 1117 at [26]-[32]. To the extent that Conviction Ground 2 refers to the “administration of allocutus”, it is sufficient to observe that, where the trial has commenced before a jury, the common law concept of “allocutus” is now covered by the statutory procedure contained in s.157 where, as occurred here, the presiding Judge accepted the Applicant’s pleas of guilty (see [57] above).

  7. Insofar as the Applicant complains (in support of Conviction Ground 1) about aspects of his legal representation at the trial and sentencing hearing, those complaints should be rejected. Where there is any inconsistency between the accounts of the Applicant and those of Mr Brasch, Mr Jiang, Mr Abbas and Mr Jamal, I accept the accounts of the Applicant’s former counsel and solicitors, noting that their accounts are supported in significant respects by written instructions signed by the Applicant and by contemporaneous file notes.

  8. I do not accept the Applicant’s evidence that he was given a type of assurance by Mr Abbas that he would receive a sentence (or non-parole period) that expired at or soon after the date when sentence was to be passed. I accept that the Applicant was advised (correctly) that his sentence would be much shorter than it would have been if he proceeded to trial and was convicted of the s.61I Crimes Act 1900 offences as well. That risk was removed by the Applicant’s desire to plead guilty to the remaining counts.

  9. I accept that the Applicant hoped that he might not get an additional custodial component on sentence, but this was not the product of any assurance made to him by any of his then lawyers. The Applicant’s claim in this respect is contrary to written instructions provided by him on 18 October 2018 (see [51] above).

  10. Nor do I accept that the Applicant’s letter of remorse was “dictated” to him by his lawyers. I accept that Mr Jiang and Mr Jamal raised the possibility of a letter of remorse with the Applicant in their telephone conference with him. However, it was the Applicant, an intelligent and resourceful man, who wrote the letter, whilst in custody, using his own words and knowing that his letter was to be provided to the Court for the purpose of sentence.

  11. The Applicant’s complaint concerning the failure of his lawyers to obtain material concerning the assault upon him in 2007 does not assist him on the conviction appeal. I will return to this issue when considering the sentence appeal. Put shortly, however, the evidence reveals that the psychologist, Ms De Santa Brigida, suggested that efforts be taken to obtain information concerning a 2007 incident in which the Applicant was injured. The affidavits of Mr Jiang, Mr Jamal and Mr Abbas indicate that action was taken in this respect. It was discovered that Dr George Lord (who had seen the Applicant) had died. The Applicant was advised on 11 December 2018 of the potential advantages of seeking a further adjournment of the sentencing hearing from 13 December 2018 to allow a subpoena to issue seeking any report or records of Dr Lord. Mr Jamal went as far as drafting a Notice of Motion and affidavit in support for the purpose of making an adjournment application. The Applicant was advised of the advantages and disadvantages of such a course. He gave instructions to Mr Jiang and Mr Jamal that no adjournment should be sought on 13 December 2018 and that the Court should proceed to sentence him, which is what in fact occurred.

  12. I record these aspects here to note that they do not bear upon the conviction appeal. Further, it appears that the Applicant’s legal representatives took appropriate steps and advised him at that time, but it was the Applicant who determined that an adjournment should not be sought.

  13. Insofar as a number of complaints of different types are made by the Applicant concerning his former counsel and solicitors, I do not consider that it is necessary to address these matters which have no material bearing upon his application for leave to appeal against conviction.

  14. The Applicant had full knowledge of the elements of the offences to which he pleaded guilty and the facts upon which those charges were based. He had read the Statement of Agreed Facts and had signed that document. He had demonstrated a close and astute interest in the various charges and well understood then what they meant and the seriousness of the charges to which he was pleading guilty.

  15. Even if it was the case that the Applicant pleaded guilty to these matters upon grounds which extended beyond his belief in his guilt (and I do not so find), this provides no assistance to him on this application. As is clear from the authorities, the acceptable reasons why a person may plead guilty to offences extend beyond the person’s belief in his guilt, and include the hope of obtaining a more lenient sentence than would be the case if convicted after trial and the advantage for the Applicant of the Crown not proceeding with more serious charges.

  16. Those features manifested themselves in this case. The Applicant’s guilty pleas saw the withdrawal of the four serious charges of having sexual intercourse without consent for which a very substantial sentence of imprisonment would have followed if the Applicant was convicted after trial. His plea agreement saw the removal of that risk. In addition, the Applicant secured a 10% discount for his pleas of guilty.

  17. The Applicant’s pleas of guilty were entered freely and voluntarily, and were the subject of written instructions from the Applicant to his lawyers. There was no intimidation, improper inducement or fraud which led to the Applicant’s pleas of guilty. This was an informed decision by the Applicant to plead guilty to the charges for which sentence was passed.

  18. To the extent that expediency formed part of the Applicant’s decision to enter the pleas of guilty, this was clearly a decision taken by him in what he perceived to be his own interests by removing the risk of being found guilty of the s.61I charges and to advance his hope of obtaining a more lenient sentence.

  19. It must be said, in any event, that there was a significant body of evidence against the Applicant apart from the evidence of FF, including the Applicant’s expressions of remorse made to his mother and the psychologist and in his correspondence to the victim in June 2017 which gave rise to the contravene ADVO offence as well as his letter of apology dated 6 December 2018.

  20. In my view, the Applicant has fallen far short of discharging the onus on him of demonstrating a good and substantial reason for the Court granting him leave to withdraw his pleas of guilty. He has not established that a miscarriage of justice will result from him being held to the pleas of guilty which he entered to the charges for which sentence was passed.

  21. Conviction Grounds 1 and 2 should be rejected.

  22. I would refuse the Applicant leave to appeal against conviction.

Determination of Sentence Appeal

  1. Insofar as the Applicant’s appeal against sentence is based upon a claim of incompetent legal representation before the District Court, it is necessary for him to establish the elements of such a ground as stated by Beech-Jones J in Tsiakas v R at [42]-[45] (see [33] above).

  2. The Applicant had given clear written instructions to his lawyers on 18 October 2018 to plead guilty to the offences in relation to which sentence was passed. I have determined that the Applicant should not be granted leave to appeal against conviction as he has fallen far short of discharging the onus on him to allow his pleas of guilty to be withdrawn. He pleaded guilty knowing the elements of the offences and the facts relied upon to constitute the offences.

Sentence Grounds 1, 2 and 3 - Complaints Concerning Legal Representation on Sentence and Absence of Medical Evidence

  1. The Applicant complains concerning steps taken (or not taken) by his legal representatives with respect to sentence. I have noted earlier (at [117]-[118]) that the evidence discloses that Mr Jiang, Mr Jamal and Mr Abbas sought to take steps on his behalf and, in particular, to advise him to seek an adjournment to see if records of Dr Lord could be obtained on subpoena in circumstances where it had been discovered that Dr Lord was deceased.

  2. Mr Jamal made a file note concerning the telephone conference on 11 December 2018 with Mr Jiang and the Applicant (affidavit of Mr Jiang, Annexure J). I accept the evidence of Mr Jiang and Mr Jamal that the file note is an accurate reflection of advice given to the Applicant. The issue was whether an adjournment should be sought to allow a subpoena to issue seeking any records of Dr George Lord (then deceased), who had examined the Applicant in 2008. The report of Ms De Santa Brigida had raised the desirability of this step and Mr Jiang and Mr Jamal were acting prudently in raising the issue for instructions from the Applicant. The conference notes record what were described as potential “risks” and “rewards” from an adjournment. The “risks” included uncertainty as to what was in any document (if there were any documents), delay and uncertainty as to whether the sentencing Judge would allow an adjournment. The “rewards” included the possibility of evidence of brain damage with the prospect of that being a significant factor on sentence.

  3. According to the file note, the Applicant asked if he would get bail during the adjournment and was advised that was unlikely. The file note stated that the Applicant gave clear instructions that he did not want to delay sentence.

  4. I accept the evidence of Mr Jiang and Mr Jamal concerning the conference on 11 December 2018. Sensible advice was given to the Applicant and he was asked to give instructions as to the way forward. In the event that the Applicant gave instructions to seek an adjournment, Mr Jamal had prepared a draft Notice of Motion and supporting affidavit for that purpose. As it happened, the Applicant made clear that he wished the matter to proceed and no adjournment application was made.

  5. In my view, reasonable steps were taken by the Applicant’s legal representatives to advise him of the available courses of action, but it was the Applicant who determined that an adjournment would not be sought on 13 December 2018 so that there would be no opportunity for further steps to be taken to seek additional material prior to sentence

  6. The evidence does not demonstrate incompetence on the part of the Applicant’s legal representatives concerning sentence. The Applicant has not established a basis for this Court to intervene by reference to the principles in Tsiakas v R.

  7. It is the case that a number of documents have been obtained by the Applicant since sentence was passed on 13 December 2018. These documents are:

  1. two pages of Liverpool Hospital notes, with a commencement date of 11 January 2007 concerning treatment of Yazna Azar which was an alias used by the Applicant at the time of this admission to hospital - the Applicant did not inform his legal representatives in 2018 that he had been admitted to hospital under that name;

  2. a report from Dr Evelyn Howe, clinical psychologist, dated 30 November 2007 for the purpose of a victim’s compensation claim which referred to an assault upon the Applicant in January 2007 by a person using a pool cue and the need for further matters to be investigated;

  3. a counselling report from Fleur Bishop dated 28 April 2008 concerning the Applicant’s irregular attendance at sessions, with it being said that the Applicant was being treated as a result of an injury incurred during an assault in 2007;

  4. a report dated 24 July 2008 from Dr George Lord, consultant physician and neurologist, which outlined various investigations undertaken with respect to the Applicant and Dr Lord’s opinion concerning the Applicant.

  1. The report of Dr Lord of 24 July 2008 is the latest and most important document concerning treatment and investigation of the Applicant for a head injury sustained in an assault on 11 January 2007. Dr Lord referred to EEG and MRI scans which had been undertaken. A progress MRI scan was performed on 10 July 2008 and this MRI was compared to the earlier study. Dr Lord stated that “This test was considered to be within normal limits”. Dr Lord stated that the Applicant “has sustained a frontal head injury confirmed by the history and the scar just below the left eyebrow”. Dr Lord completed his report in the following way (emphasis added):

“His symptoms and problems with his organisational skills and apparent loss of appropriate awareness of the consequences of his actions, lack of ability to control himself significantly to prevent these would be consistent with frontal lobe dysfunction and thus impair his ability to restore ‘appropriate’ normal behaviour.

This man's premorbid performance as ‘school captain’ and passing his first year university course and subsequent deterioration in his performance and his history of colour desaturation. His psychological testing results were consistent with frontal dysfunction. Unfortunately psychological testing can be less than diagnostic in frontal lobe dysfunction. His MRI scan shows no sign of continuing damage to his left frontal lobe. The history of colour desaturation of colour vision in his left eye would support the occurrence of a severe head injury at that site. The subsequent MRI with fibre tracking showed no obvious abnormality and this would confirm any local oedema that may have been a result of his head injury has resolved thus we can expect an improvement in his executive skills and should expect a return to normal function.”

  1. Accordingly, the state of the evidence in July 2008 was that the Applicant had sustained a head injury in an assault in January 2007, but there was no evidence of a brain injury with the prognosis being that the Applicant should “return to normal function”.

  2. The 2007 and 2008 notes and reports concerning the Applicant’s condition arising from an incident in January 2007 were in existence at the time the Applicant was sentenced on 13 December 2018. The Applicant’s legal representatives raised with him the option of an adjournment to seek records from Dr Lord which, if an adjournment was granted, would likely have seen production of Dr Lord’s report of 24 July 2008.

  3. This Court allows, in certain circumstances, medical evidence not tendered at the sentencing hearing to be made available to this Court on appeal where the interests of justice so dictate. The principles to be applied are expressed in cases such as Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [111]-[121] and Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [77]-[86]. Beech-Jones J referred to this scenario as well in Tsiakas v R at [45] (see [33] above). If a miscarriage of justice resulted from the unavailability of the medical material, then this Court may receive the material and determine the appeal against sentence in light of all material.

  4. Although I would admit the 2007 and 2008 material for the purpose of the Court considering this aspect of the appeal, I am not persuaded that a miscarriage of justice resulted from its absence in the sentencing proceedings in December 2018.

  5. It is appropriate to have regard to the material now available, in particular Dr Lord’s report of 24 July 2008, in conjunction with that which was before the sentencing Judge in the form of the report from Ms De Santa Brigida.

  6. The material before the sentencing Judge indicated that, after 2008 and before 2016, the Applicant had carried on various businesses, including international travel for business purposes and had been successful in that respect. Whatever problems existed at the time of Dr Lord’s report in July 2008 do not appear to have manifested themselves in such a way as to interfere with the Applicant’s capacity to live a productive and functional working life.

  7. The offences committed against the victim occurred in a 14-month period between December 2015 and February 2017. There is no contemporaneous medical evidence concerning the Applicant in that period. The report of Ms De Santa Brigida was based upon a two-hour interview she had with the Applicant in custody on 18 November 2018 and the Applicant’s own history provided to the psychologist. The letter from the Applicant’s mother took the matter no further.

  8. Significantly, for present purposes, there is no recent report from a medical practitioner or a psychologist which is sought to be put before this Court and which seeks to relate the 2007 and 2008 reports (and, in particular, Dr Lord’s report of 24 July 2008) to the commission of these offences between 2015 and 2017 or to the Applicant’s present condition.

  9. The offences occurred more than seven years after Dr Lord’s report. It is true that the availability of these reports would have indicated to the sentencing Judge that there was contemporaneous documentation concerning an injury sustained by the Applicant in an assault in January 2007. However, there is no clear or viable basis for linking that incident to the Applicant’s protracted period of offending when he committed domestic violence offences against the victim.

  10. As observed earlier (at [85]), the sentencing Judge had noted when sentencing the Applicant “It is possible he was assaulted but there is no evidence to establish any organic condition arising out of any such assault that might have contributed to the prisoner’s conduct”. This remains the position now that this Court has available to it Dr Lord’s report and the other material referred to earlier (at [137]).

  1. I observe that the Applicant has been at liberty on bail since 9 June 2020. Whatever restrictions may have applied to him before then in gathering evidence for the purpose of this appeal, he has had an opportunity to take all appropriate steps in preparation for the hearing of the appeal whilst being at large in the community. The Applicant has filed a steady volume of material in support of his appeal in the weeks before the hearing. However, there is no recent medical report upon which he seeks to rely which attempts to link what was said in Dr Lord’s report to the present offending. Further, having had an opportunity to observe the Applicant during the hearing in this Court, he displayed resourcefulness and a command of the material and the issues and a capacity to function effectively which did not seem consistent with the presence of brain injury.

  2. In my view, the Applicant has not demonstrated that a miscarriage of justice resulted from the absence of the 2007 and 2008 reports at the time of sentence. These documents would have assisted in establishing that such an assault took place, but that would have been the limit of their forensic use. There was no further material arising in the seven-year period between 2008 and 2015, during which the Applicant appeared to function effectively before the commencement of the course of criminal conduct directed to the victim over a period of some 14 months.

  3. For completeness, I reject the Applicant’s submission in support of Sentence Ground 2 (at [14] above) that the sentencing Judge was prejudiced because he had seen the facts alleged as part of the charges under s.61I Crimes Act 1900. This is a common feature in the life of a judicial officer presiding in criminal cases and his Honour disregarded those matters in accordance with his duty as a judicial officer: Attorney General for NSW v John Fairfax and Sons Limited and Bacon (1985) 6 NSWLR 695 at 709 (McHugh JA).

  4. I would reject Sentence Grounds 1, 2 and 3.

Sentence Ground 4 - Claim of Manifest Excess

  1. The Applicant contends (in Sentence Ground 4) that the aggregate sentence imposed in his case was manifestly excessive. To succeed on this ground, the Applicant must demonstrate that the sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

  2. With respect to the claim by the Applicant that the aggregate sentence was manifestly excessive, it is important to note what has been said by this Court concerning domestic violence offences. The written submissions for the Crown in the District Court referred to the authorities in this respect, which his Honour acknowledged and applied when passing sentence.

  3. In Cherry v R [2017] NSWCCA 150, this Court said at [78]-[79]:

“78   In R v Kilic (2016) 91 ALJR 131; [2016] HCA 48, the High Court observed at 137 [21] that current sentencing practices for ‘offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’. It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.

79   In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54].”

  1. The Applicant’s offences reflected his exercise of control and domination over the victim with these being common features of domestic violence offences: Cherry v R at [76]-[77]. Specific and general deterrence were important factors on sentence in this case together with the requirement for powerful denunciation by the community of such conduct and recognition of the harm done to the victim as a result of these offences: R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at [86]; Cherry v R at [76].

  2. It is important to keep in mind, as well, the serious public justice offence committed by the Applicant contrary to s.314 Crimes Act 1900. Section 314 lies within Division 2 of Part 7 of the Crimes Act 1900 which contains offences concerning “interference with the administration of justice”. As the sentencing Judge found (see [72] and [93] above), the Applicant’s s.314 offence involved the making of false allegations against police officers designed to protect the Applicant himself from prosecution for domestic violence offences against his partner. The Applicant caused injuries to himself which he falsely attributed to police. As his Honour observed, the Applicant did not carry through with further reports. However, this was a serious public justice offence which warranted the indicative sentence of imprisonment for two years which was itself a significant component of the aggregate sentence imposed upon the Applicant.

  3. No error has been demonstrated on the part of the sentencing Judge in his approach to sentence. His Honour was especially guarded with respect to any claim of contrition or remorse, with the Applicant’s outbursts during the sentencing remarks not assisting the Applicant in that respect. It must be said that the Applicant’s approach in this Court, in attempting to withdraw his pleas of guilty, would further complicate his position concerning sentence if the Court moved to resentence him. There is a continuing and deep-seated lack of insight on the part of the Applicant concerning his domestic violence offences.

  4. The aggregate sentence imposed upon the Applicant was open in all the circumstances of the case. The aggregate sentence was not manifestly excessive.

  5. I would grant the Applicant leave to appeal against sentence because of the issue concerning the subsequent availability and provision of the 2007 and 2008 reports. However, the Applicant has not succeeded in demonstrating that this Court should intervene on the issue of sentence.

  6. I would reject each of the Applicant’s grounds of appeal concerning sentence.

Conclusion and Orders

  1. The Applicant was released on bail by this Court on 9 June 2020 and has remained at large until the date when judgment is to be given on the appeal.

  2. The time during which the Applicant is at liberty on bail, pending the determination of his appeal, does not count as part of his term of imprisonment under the aggregate sentence imposed on 13 December 2018: s.18(2) Criminal Appeal Act 1912. The Court may make any order that it thinks fit to give effect to s.18, including an order specifying the date of recommencement of the Applicant’s sentence: s.28A(2) Criminal Appeal Act 1912.

  3. As part of the orders which I propose, the Court should nominate a date for the recommencement of the Applicant’s sentence. At the conclusion of the hearing on 14 August 2020, the Applicant was informed that he was required under his bail undertaking to attend before the Court when judgment was given on his appeal. The following proposed orders assume the attendance of the Applicant today.

  4. I propose the following orders:

  1. leave to appeal against conviction refused;

  2. grant leave to appeal against sentence;

  3. appeal against sentence dismissed;

  4. for the purpose of s.28A(2) Criminal Appeal Act 1912, an order is made that the Applicant’s aggregate sentence imposed on 13 December 2018 should recommence today, 27 August 2020;

  5. for the purpose of s.18(2) Criminal Appeal Act 1912, the Court notes that the period between 10 June 2020 and 26 August 2020 does not count as part of the aggregate sentence of imprisonment imposed on 13 December 2018;

  6. as a result of the alterations to the aggregate sentence referred to in [165](d) and (e), the non-parole period will now expire on 7 February 2021 and the aggregate sentence will expire on 6 May 2023;

  7. the earliest date on which the Applicant will be eligible for release on parole is 8 February 2021.

  1. ROTHMAN J: I agree with the reasons for judgment of Johnson J and the orders he proposes. I wish to add comment.

  2. As his Honour points out, there are many reasons an accused may plead guilty. In this case, a process of “charge bargaining” occurred, by which the prosecutor agreed to withdraw the charges relating to sexual assault in return for a plea of guilty on the other charges.

  3. It is for the prosecutor alone to determine the charges to prefer or continue; for the accused alone to determine the plea to enter; and for the judge alone to determine the sentence to impose. [1]

    1. GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22.

  4. In pleading guilty, the applicant ensured that the sexual assault charges would not be pursued and he would never be sentenced for such offences. In so doing the applicant, whether or not he considered he was guilty of the sexual assaults, had removed any risk of a finding of guilt. If he were to have been found guilty of such charges, the sentence imposed on him would have been significantly more severe than the one from which he now appeals.

  5. Because of the extraordinary criminal experience and knowledge of the sentencing judge, his Honour ensured that the applicant well understood precisely what was happening and on what he was embarking.

  6. The applicant was impressive as a witness and an advocate, but that impressiveness disclosed his full understanding of the documents and of English. The applicant may, in the circumstances of the stress under which he was then operating, have misunderstood aspects of what he was being advised and may not recall all that he was being told. But he read the documents. The signature on the documents is his and he agreed to the plea and gained the benefit of the bargain. The Crown case on the sexual assault charges was not weak.

  7. If the plea of guilty were allowed to be withdrawn, the sexual assault charges would then be able to be pursued. However, for the reasons given by Johnson J, the application to withdraw the plea of guilty cannot be granted.

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Endnote

Decision last updated: 27 August 2020

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