Stubbings v R

[2023] NSWCCA 69

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Stubbings v R [2023] NSWCCA 69

Hearing dates:

13 March 2023

Date of orders:

27 March 2023

Decision date:

27 March 2023

Before:

Gleeson JA at [1]
Davies J at [59]
Wilson J at [60]

Decision:

(1)   Grant leave to appeal.

(2)   Refuse the application to admit the affidavit of Mr Hassan sworn 16 August 2022 as additional evidence on the appeal.

(3)   Appeal against sentence dismissed.

Catchwords:

SENTENCING — Appeal against sentence — Whether procedural irregularity at sentencing hearing denied applicant benefit of greater sentencing discount for guilty plea — Where applicant found unfit to be tried after committal for trial but subsequently found fit to be tried — Whether applicant pleaded guilty “as soon as practicable” after being found fit to be tried —Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(5)(a) — Whether additional evidence of circumstances leading to guilty plea admissible

Legislation Cited:

Crimes Act 1900 (NSW), s 33(1)(b)

Criminal Appeal Act 1912 (NSW), s 6(3)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(5), (6), 25F(5)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 79(1)(a)

Mental Health (Forensic Provisions) Act 1990 (NSW), ss 11, 13A

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 52

Road Transport Act 2013 (NSW), s 117(2)

Cases Cited:

Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37

Barnes v R [2022] NSWCCA 140

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Black v R [2022] NSWCCA 17

Green v R [2022] NSWCCA 230

House v The King (1936) 55 CLR 499; [1936] HCA 40

Khoury v R [2011] NSWCCA 118

Rae v R [2019] NSWCCA 284

R v Birks (1990) 19 NSWLR 677

R v Diab [2005] NSWCCA 64

R v HC (2017) 325 FLR 59; [2017] ACTSC 276

Sneddon v Minister for Justice (Cth) [2014] FCAFC 156; (2014) 145 ALD 273

Zreika v R [2012] NSWCCA 44; (2012) A Crim R 460

Category:

Principal judgment

Parties:

Graham Stubbings (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
D Barrow (Applicant)
J Styles (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/36088

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 715

Date of Decision:

10 November 2021

Before:

Bennett SC DCJ

File Number(s):

2019/36088

Judgment

1. GLEESON JA: The applicant, Mr Graham Stubbings, seeks leave to appeal against a sentence imposed upon him in the District Court on 10 November 2021.

2. The applicant entered a late plea of guilty in the District Court on 8 October 2021 to an offence of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW), and a related offence of driving a motor vehicle in a manner dangerous to the public, contrary to s 117(2) of the Road Transport Act 2013 (NSW). The grievous bodily harm offence carries a maximum penalty of 25 years imprisonment, and a standard non-parole period of 7 years imprisonment applies. The dangerous driving offence carries a maximum penalty of 9 months imprisonment and/or a fine of 20 penalty units. It also carries an automatic statutory disqualification of 3 years.

3. His Honour Judge Bennett SC applied a 10 per cent discount for the applicant’s plea of guilty and made a finding of special circumstances based on the applicant’s need for a longer period of parole to assist with reintegration into the community and rehabilitation. The sentence was ordered to commence on the day of the applicant’s arrest, that is, 3 February 2019. His Honour imposed the following sentences:

1. for the grievous bodily harm offence – 9 years imprisonment with a non-parole period of 6 years; and

2. for the dangerous driving offence – 6 months imprisonment.

4. The sentence for the dangerous driving offence was entirely subsumed within the sentence imposed for the grievous bodily harm offence. The applicant is eligible for parole on 2 February 2025.

5. The proposed appeal against sentence relies upon a single ground which contends that “[t]he sentencing judge’s conclusion that the applicant’s plea of guilty was not entered as soon as practicable was erroneous and occasioned a miscarriage of justice”.

6. Counsel for the applicant did not contend that the asserted error was an error of the kind which is generally required for the Court to intervene in a sentence as set out in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40. The applicant asserts that there was a procedural irregularity in the sentencing proceedings such that those proceedings miscarried in the sense that the applicant lost the benefit of a higher sentencing discount to which he ought to have been entitled under s 25D(5)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act).

7. The asserted procedural irregularity is founded on the absence of evidence before the sentencing judge of events that followed the decision of the Mental Health Review Tribunal on 8 April 2021 that the applicant was fit to be tried. The applicant submits that, had such evidence been brought to the attention of the sentencing judge, he would have applied a 25 per cent discount on sentence. The applicant says that this is because he pleaded guilty “as soon as practicable” after he was found fit to be tried. The Crown submits that the additional evidence is not admissible on the proposed appeal, and, in any event, the evidence sought to be relied upon by the applicant should not be considered a legitimate basis for the finding now sought by the applicant as to the timing of the guilty plea.

8. The application for leave to appeal raises the question of whether evidence not adduced on sentence is admissible on a proposed appeal against sentence under s 6(3) of the Criminal Appeal Act 1912 (NSW). The exercise of the Court’s discretion to admit such additional evidence directs attention to the particular facts of the case, the nature of the evidence and its potential impact on sentence.

9. For the reasons that follow, I have concluded that leave to rely on the additional evidence should be refused and, in any event, even if leave was granted, the absence of such evidence was not a procedural irregularity in the sentencing proceedings such that those proceedings miscarried. I propose that leave to appeal be granted and the appeal against sentence be dismissed.

Background

10. The offences were committed by the applicant on 3 February 2019 after a dispute with a female neighbour: the applicant had removed the neighbour’s damaged vehicle from his property; the neighbour responded by smashing a window and scratching the applicant’s Holden Rodeo vehicle parked at his property; the applicant pursued the neighbour and drove his vehicle over the curb and onto the footpath of Luxford Road, Bidwill where he collided with the neighbour, dragging her under his vehicle along the concrete footpath. The victim suffered substantial injuries including a deep laceration and degloving to her right leg which required surgery and a skin graft and hospitalisation for 10 days.

11. The applicant was arrested and charged with several offences on 3 February 2019. He was refused bail and remained in custody from that date. He was committed for trial on 18 October 2019 at which time the magistrate noted that the issue of the applicant’s fitness to be tried had yet to be resolved; the applicant had been diagnosed with an intellectual disability and treated in custody with anti-psychotic medication.

12. On 21 April 2020, a fitness hearing before Judge Craigie SC found the applicant was unfit to be tried: Mental Health (Forensic Provisions) Act 1990 (NSW), s 11. The applicant was subsequently reviewed by the Mental Health Review Tribunal on three occasions and on 8 April 2021, the Tribunal determined that the applicant had become fit to be tried, noting in its reasons for decision that the applicant had informed the Tribunal that he intended to plead guilty.

13. At a readiness hearing in the District Court on 20 May 2021, the parties’ legal representatives requested that the special hearing fixed for 12 July 2021 be vacated, and that a trial date be fixed with an agreed estimated of 7 to 10 days. On 26 May 2021 the parties were notified by the District Court that the proceedings were listed for trial on 25 October 2021. At a readiness hearing in the District Court on 10 June 2021, the trial date with a 10-day estimate was confirmed by the Court.

14. On 8 October 2021, the applicant was arraigned and pleaded guilty to the two offences on which he was sentenced, and the trial date of 25 October 2021 was vacated.

Sentencing discounts

15. The new scheme for sentencing discounts for guilty pleas contained in Div 1A of Pt 3 of the Sentencing Act, which commenced on 30 April 2018, introduced a strict fixed sentencing discount scheme which replaced the common law discount for the utilitarian value of a guilty plea. The changes were part of a package of reforms concerning simplification of committals proceedings, the use of case conferencing in the Local Court and a statutory sentence discount scheme for guilty pleas. This package of reforms, dubbed the “Early Appropriate Guilty Pleas Scheme”, is reviewed by Simpson AJA (Ierace and Dhanji JJ agreeing) in Black v R [2022] NSWCCA 17 at [7]-[14].

16. In the second reading speech (Legislative Assembly), 11 October 2017, the Attorney-General referred to a backlog of trials in the District Court and associated delays, and said:

The early appropriate guilty plea reforms will reduce these delays by improving productivity and ensuring that cases are effectively managed. … Late guilty pleas cause stress for victims as they await the trial and they contribute to the backlog of cases waiting to be heard in the District Court. They also mean that prosecution and defence lawyers spend time preparing for trials that never occur and divert police resources away from frontline activities. The bill will ensure that cases are better managed to ensure earlier appropriate guilty pleas.

17. Section 25D(1) provides:

(1)   Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.

18. Section 25D(2) provides, subject to certain exceptions, the applicable sentencing discounts where an offender pleads guilty by reference to the time at which the guilty plea is made, relevantly, 25 per cent if the plea was accepted by the magistrate in committal proceedings for the offence, 10 per cent if the offender was committed for trial and the offender pleaded guilty at least 14 days before the first day of the trial or complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender, and 5 per cent otherwise.

19. Section 25D(5) read together with s 25D(6) make provision for the sentencing discount for a guilty plea by an offender who is found fit to be tried after the person is committed for trial and whose matter was not remitted to the Local Court for continued committal proceedings. Sections 25D(5) and (6) provide:

(5)   Discount variations—person found fit to be tried after committal for trial The discount for a guilty plea by an offender who is found fit to be tried after the offender is committed for trial, and whose matter was not remitted to a Magistrate for continued committal proceedings, is as follows—

(a)   a reduction of 25% in any sentence that would otherwise have been imposed, if the offender pleaded guilty as soon as practicable after the offender was found fit to be tried,

(b)   a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply and the offender—

(i)   pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii)   complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c)   a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

(6)   Opportunities for legal help to be taken into account For the purpose of determining under subsection (3) or (5) whether the offender pleaded guilty as soon as practicable after an ex officio indictment was filed or the original indictment was amended or after a finding of fitness to be tried, the court is to take into account whether the offender had a reasonable opportunity to obtain legal advice and give instructions to his or her legal representative (if any).

20. The combined effect of s 25D(5) and (6) is to require an evaluative assessment by the sentencing court of whether the offender pleaded guilty “as soon as practicable” after the offender was found fit to be tried, informed by the mandatory consideration in subs (6) of whether the offender had a reasonable opportunity to obtain legal advice and give instructions to his or her legal representative (if any).

21. The onus of establishing that grounds exist for a statutory sentencing discount lies on the offender and must be proved on the balance of probabilities: s 25F(5), Sentencing Act.

22. Section 52 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) complements s 25D(5)(a) of the Sentencing Act for offenders found fit to be tried after a committal. Section 52, which replaced s 13A of the 1990 Mental Health (Forensic Provisions) Act with effect on 23 June 2020, relevantly provides:

52 Committal proceedings following finding of fit to be tried

(1) This section applies to a defendant who was committed for trial for an offence under Division 7 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986.

(2) The court may, on the application of the defendant or on its own motion, make an order remitting the matter to a Magistrate for the holding of a case conference under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, if the defendant has, following an inquiry, been found fit to be tried for an offence.

(3)   The court must make the order on the application of the defendant unless it is satisfied that it is not in the interests of justice to do so or that the offence is not an offence in relation to which a case conference is required to be held under that Division.

…

(5)   If a matter is remitted to a Magistrate, the matter is to be dealt with as if the defendant had not been committed for trial and the proceedings are taken to be a continuation of the original committal proceedings.

…

23. This provision enables the proceedings against an accused person to be remitted to a magistrate for the holding of a case conference as a continuation of committal proceedings for an offence, if the accused person is found fit to be tried for the offence and was committed for trial before a case conference was held. This provision creates a presumption of remittal on application of the accused person, with an exception where “it is not in the interests of justice”: s 52(3).

24. The combined effect of these provisions is as follows.

25. If an accused person who has been committed for trial and is found fit to be tried takes advantage of the procedural accommodation afforded by s 52 of the MHCIFP Act of remittal of the proceedings to the Local Court for a continuation of the committal proceedings, the applicable sentencing discounts are those prescribed by s 25D(2) of the Sentencing Act. If such an accused person pleads guilty in the Local Court on remitter the prescribed sentencing discount is 25 per cent.

26. Alternatively, if an accused person who has been committed for trial and is found fit to be tried does not apply for remittal of the proceedings to the Local Court for a continuation of the committal proceedings, the applicable sentencing discounts are those prescribed by s 25D(5) of the Sentencing Act. In such a case, a sentencing discount of 25 per cent is prescribed if the accused person pleads guilty “as soon as practicable” after the person is found fit to be tried, taking into account the mandatory consideration in s 25D(6) of whether the person had a reasonable opportunity to obtain legal advice and give instructions to his or her legal representative (if any).

The proceedings on sentence

27. It is not in dispute that the facts before the sentencing judge relevant to his determination of the applicable sentencing discount for the plea of guilty are those summarised at [11]-[14] above. The applicant tendered medical evidence on sentence, including a report of Dr Furst, forensic psychiatrist, dated 21 September 2021, who diagnosed the applicant as having limited intellectual capacity, being borderline disability range. Dr Furst expressed the opinion that the applicant was not suffering from a mental illness at the time of the alleged offending.

28. Both parties provided written submissions. The Crown submitted that the appropriate sentencing discount was 10 per cent, given the applicant’s plea of guilty on 8 October 2021 which was 16 days before the trial date of 25 October 2021, referring, incorrectly, to s 25D(2)(d)(i) of the Sentencing Act. The correct reference should have been to 25D(5). The applicant’s counsel submitted under the heading, “Plea of guilty”:

[1]   Although the offender pleaded guilty at a late stage, his plea should be of considerable utilitarian value.

…

[6]   It should not be assumed that the offender has delayed pleading guilty because of the absence of remorse or that reasonably speaking, he has not pleaded guilty at the earliest opportunity. More so in the current circumstances of the present offender who:

(i)   was borderline intellectual disabled range

(ii)   was rendered unfit to plead

(iii)   was subject of extensive psychiatric intervention

(iv)   was requiring a support person to conduct their ordinary affairs

(v)   and was subject of not insignificant inability for legal professional visits due to the COVID lockdown provisions for custodial inmates. [Emphasis added]

29. In response to the sentencing judge seeking confirmation whether it was accepted that the 10 per cent was the applicable sentencing discount, counsel for the applicant answered:

Yes. The statutory discount is 10% but my submissions about the value of the plea and the question of delay, your Honour, don’t go to the statutory discount. They go to overall issues about what is an appropriate sentence.

Decision of the sentencing judge in relation to the plea

30. After noting that the applicant did not plead guilty at the earliest opportunity for reasons that are not attributable to any decision that could have been made by him in the circumstances, the sentencing judge referred to the procedural history of the prosecution, including that the applicant had indicated that he intended to plead guilty in the period leading up to the determination of the Mental Health Review Tribunal that he was fit for trial, specifically in the course of the final hearing before the Tribunal when he was represented.

31. His Honour referred to the statutory sentencing discounts specified by s 25D of the Sentencing Act, and noted that s 25D(5) provides for discounts where a person is found fit to be tried after a committal for trial. His Honour gave the following reasons for finding that a 10 per cent discount applied in this case:

The determination of the Mental Health Tribunal was on 8 April 2021. I have the reasons for the determination and annexure A to that document, which provides a helpful summary of the demographics of the offender and the assessment of medical practitioners made of him in the course of the investigation of his capacity to participate in the proceedings. The plea of guilty was not entered until 7 October 2021 and thus the opportunity presented by s 25B(5)(a) does not in these circumstances extend to the allow the discount of 25% for which that paragraph provides. However, the discount of 10% is available to the offender as submitted by the Crown and as conceded on behalf of the offender.

Application to adduce additional evidence on appeal

32. The additional evidence on which the applicant seeks to rely is contained in an affidavit by his solicitor, Mr Yusuf Hassan, sworn 16 August 2022. That evidence, to which the Crown objected, is to the following effect:

1. after becoming aware that the applicant was fit to stand trial, there was phone contact between the applicant and his solicitor, without the presence of trial counsel or the applicant’s support worker, Ms Goltzoff;

2. between 6 April 2021 and 28 June 2021, four of five attempts for in-person visits could not be facilitated with the applicant: on two occasions because of a lockdown at the gaol; on one occasion because the applicant’s support worker was unable to attend; and on one occasion because the applicant’s trial counsel was unable to attend. On 2 June 2021, a solicitor from the applicant’s legal representatives, together with Ms Goltzoff, attended a conference with the applicant at the gaol, but trial counsel was unable to attend;

3. on 26 May 2021, the applicant’s solicitor was notified that the proceedings had been transferred to the Sydney District Court and listed for trial on 25 October 2021;

4. on 15 July 2021, at an AVL conference arranged with the applicant, his trial counsel and solicitor, the applicant gave instructions that he did not wish to go to trial and wanted to negotiate a lesser charge. Trial counsel advised that an expert opinion should be sought to consider possible defences to the principal charge;

5. on 16 July 2021, the applicant’s solicitor sent an offer to the DPP offering to plead guilty to an alternative charge, which was rejected on 20 August 2021;

6. on 28 July 2021, the applicant’s solicitor requested Dr Furst to provide a report, which was received on 21 September 2021. The report concluded that no mental health-based defence was available to the applicant;

7. on 24 September 2021, at a video conference between the applicant, his trial counsel, and solicitor, the applicant confirmed his instructions regarding the plea;

8. on 27 September 2021, the DPP was notified that the matter would very likely proceed as a plea of guilty to causing grievous bodily harm with intent, subject to agreed facts;

9. on 6 October 2021, the applicant provided signed facts and confirmed his instructions to plead guilty. The signed facts were provided on the same date to the Crown; and

10. on 8 October 2021, the applicant was arraigned and entered a plea of guilty. The trial date of 25 October 2021 was vacated, and the matter was listed for sentence on 28 October 2021.

33. With respect to (6) above, the report of Dr Furst is not new or fresh evidence. As indicated, this report was tendered by the applicant at the hearing on sentence.

Relevant principles for admission of fresh or new evidence

34. In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10], the joint judgment observed:

Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. (Footnotes omitted.)

35. The principles relating to the admission on appeal of fresh or new evidence were recently reviewed by Hamill J in Barnes v R [2022] NSWCCA 140 at [24]-[38] (Gleeson JA and Ierace J agreeing). It is sufficient to reproduce the summary of principles in Barnes at [26]-[28]:

The power to receive the material is a discretionary one and the general rule against admissibility should not be exercised so rigidly as itself to “be the cause of injustice”. It has been held that a degree of flexibility is preferrable where the statute is silent and the Court’s jurisdiction is concerned with the prevention of a miscarriage of justice.

While the authorities throw up many cases where evidence has been admitted on appeal, the general rule prevails in most cases. Additional evidence is only received where proper grounds have been established. The Court has been “at pains” for decades to ensure that the rule against admission of this evidence will only yield in “rare and exceptional cases” or, put another way, for “substantial reasons [where there is] a grave risk of injustice.”

The case law draws a distinction between “fresh” and “new” evidence. Evidence will constitute “fresh evidence" if it was not available to a party, “could not have been discovered with the exercise of reasonable diligence” at the time of sentence, and its admission will depend on whether it had the “capacity to affect the outcome of proceedings at first instance.” “New” evidence is material that was available but not used, or was discoverable with reasonable diligence at the time of sentence. Fresh evidence is received more readily than new evidence.

36. In this case the evidence sought to be relied upon by the applicant is “new” evidence, rather than “fresh” evidence, because it was available, but not used, or in the exercise of reasonable diligence it could have been obtained at the time of sentence: Khoury v R [2011] NSWCCA 118 at [107] (Simpson J, Davies J and Grove AJA agreeing).

37. The categories of case where the Court can receive additional evidence on appeal include evidence which should have been, but was not, adduced at the sentencing hearing because of incompetent legal representation: see, for example, Rae v R [2019] NSWCCA 284. However, that is not the present case. There is no ground of appeal asserting incompetent legal representation.

38. Another category of case where additional evidence has been received on appeal is where the facts or circumstances of which the evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, and it is in the interests of justice to correct the misunderstanding: Khoury at [113]. As Simpson J explained in Khoury at [121]:

That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton).

39. It is well-established that a party is generally bound by the conduct of counsel at first instance, who has a wide discretion in conducting proceedings: R v Birks (1990) 19 NSWLR 677 at 683, 685. Moreover, sentence appeals are reviews of a discretion and not a rehearing with different evidence: Zreika v R [2012] NSWCCA 44; (2012) A Crim R 460 at [81] (Johnson J, McClellan CJ at CL and Rothman J agreeing).

40. However, when considering whether leave should be granted to rely on additional evidence on an application for leave to appeal against sentence, the nature of the inquiry raised by the proposed ground of appeal needs to be kept in mind. In the present case, the inquiry is an objective one, focused “ultimately, [on] what did or did not occur” in relation to the entering of the plea and whether a miscarriage resulted. As Hamill J said in Green v R [2022] NSWCCA 230 at [38] (Macfarlan JA and Harrison J agreeing):

The question is not whether there was neglect or incompetence but whether, viewed objectively, the events that unfolded gave rise to a miscarriage of justice. The inquiry is an objective one, focused “ultimately, [on] what did or did not occur” in relation to the entering of the plea and whether a miscarriage resulted. The evidence of the lawyers is relevant to inform that question of whether there was a miscarriage of justice. It is not an inquiry into whether there was professional neglect. As Gaudron J put it in TKWJ v The Queen (2002) 212 CLR 124 at [31]:

“As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of ‘flagrant incompetence’, ‘egregious error’ or the like.”

Whether the new evidence should be admitted on appeal

41. Counsel for the applicant (who did not appear at the sentence hearing) submits that the applicant’s counsel on sentence was “completely oblivious” to the sentencing discount provisions in s 25D(5) of the Sentencing Act, and there can be no forensic reason or basis for the higher sentencing discount in s 25D(5)(a) not being raised on sentence.

42. Insofar as these submissions implicitly assert incompetent legal representation, leave to rely upon the new evidence should be refused because this is not a ground of appeal.

43. Next, counsel for the applicant submits, by reference to Zreika at [81]-[82], that this is an exceptional case where material available on sentence was not used or understood by the applicant’s legal representatives, and which demonstrates that there was a procedural irregularity in the sentencing proceedings such that those proceedings miscarried.

44. The asserted procedural irregularity directs attention to “the circumstances of, and any explanation for, the non-production of the evidence”, including whether it was “a deliberate decision on the part either of the applicant, or his or her legal representatives” or “ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives” or “incompetent legal representation”: Khoury at [121]. The last two matters can be put aside; the applicant did not fail to communicate relevant information to his legal representatives, and incompetent legal representation is not a ground of appeal.

45. As to the first matter, as indicated, the report of Dr Furst was in evidence on sentence. The new evidence on which the applicant seeks to rely concerns the difficulties experienced by the applicant’s legal representatives in obtaining access to the applicant between April 2021 and 15 July 2021, the time spent on plea negotiations with the Crown and the time spent in obtaining Dr Furst’s report between July and September 2021. The explanation for the non-production of such evidence is incomplete as the applicant’s solicitor, Mr Hassan, does not disclose in his affidavit whether or not:

1. he was aware of the sentencing discounts in s 25D(5) of the Sentencing Act and the procedural accommodation provided by s 52 of the MHCIFP Act;

2. he discussed these provisions with trial counsel, including the possibility of making an application for remittal of the proceedings to the Local Court, when the applicant gave instructions on 15 July 2021 to engage in plea negotiations, and it was decided to seek a report from Dr Furst; and

3. he and/or counsel formed the view that the applicant was not entitled a higher sentencing discount because the applicant had not pleaded guilty “as soon as practicable” after he was found fit to be tried.

46. Given the incomplete explanation for the non-production of the evidence now sought to be relied upon on appeal, I would refuse leave to the applicant rely upon such evidence.

47. Nevertheless, against the possibility that there is unfairness in refusing leave, which may itself produce a miscarriage (Rae v R at [36]; R v Diab [2005] NSWCCA 64 at [19]), I have considered whether the absence of the new evidence was a procedural irregularity in the sentencing proceedings.

The meaning of the phrases “as soon as practicable” and “reasonable opportunity”

48. It is necessary first to say something about the meaning of the phrase “as soon as practicable” in s 25D(5)(a) of the Sentencing Act. There are two components of this phrase. First, the words “as soon as” supply a temporal element: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [121] (Gummow J); Sneddon v Minister for Justice (Cth) [2014] FCAFC 156; (2014) 145 ALD 273 at [116] (Middleton and Wigney JJ). Second, the word “practicable” identifies that which is able to be put into practice and which can be effected or accomplished: Al-Kateb v Godwin at [121]; Sneddon v Minister for Justice (Cth) at [116].

49. R v HC (2017) 325 FLR 59; [2017] ACTSC 276 involved the phrase “as soon as practicable after the event” in s 79(1)(a) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Burns J said at [67]:

The expression “as soon as practicable” is imprecise and is flexible in its application: Creely v Ingles [1969] VR 732. The meaning given to the expression will depend on the circumstances: see Tampion v Chiller [1970] VR 361 (Tampion v Chiller) at 364 per Anderson J. The expression does not mean “as soon as possible”: Tampion v Chiller at 365; Wills v Whitside, Ex parte Wills (1987) 2 Qd R 284 at 288. In assessing whether an obligation cast upon a police officer to do something “as soon as practicable” has been complied with, a court should allow for normal factors of police practice: Richards v Schutt (1978) 18 SASR 421 at 425, quoted with approval by Duggan J in Magain v Roberts (1991) 14 MVR 313 at 320. Where an obligation cast is upon a person to perform an action “as soon as practicable”, the requirement is usually to be assessed from the point of view of the person upon whom the obligation is cast: Martin v Commonwealth of Australia (1975) 7 ACTR 1.

50. Turning to the phrase “reasonable opportunity” in s 25D(6) of the Sentencing Act, the word “opportunity” connotes an appropriate time or occasion. The qualification “reasonable” limits or qualifies what would otherwise be an appropriate time or occasion. It introduces an assessment or judgment of a period which is appropriate or suitable for the accused person to obtain legal advice and give instructions to his or her legal representatives: Sneddon v Minister for Justice (Cth) at [116]. The criterion “reasonable opportunity” is objective. What will constitute a “reasonable opportunity” will, of course, depend on the particular facts and circumstances of each case.

51. Thus, the evaluative assessment required by s 25D(5)(a) of the Sentencing Act of whether an offender pleaded guilty “as soon as practicable” after the offender is found fit to be tried following a committal, is to be made from the point of view of the offender in respect of whom the obligation to do so is cast, taking into account, as required by s 25D(6), a period of time which, viewed objectively, is appropriate or suitable in the circumstances of the particular case for the offender to obtain legal advice and give instructions to his or her legal representative (if any).

There was no miscarriage of justice

52. The applicant points to the evidence of three events following the decision of the Mental Health Review Tribunal in April 2021, being the problems that had delayed the applicant’s legal representatives from seeing him, their subsequent need to seek the advice of Dr Furst, and the timely way in which they communicated the applicant’s decision to plead guilty to the DPP, as all supporting the conclusion that the applicant’s plea of guilty was entered – consistent with s 25D(5) and (6) of the Sentencing Act – as soon as practicable after the applicant had been found fit to be tried.

53. Addressing the mandatory consideration in s 25D(6) of the Sentencing Act, in the circumstances of this case, making due allowance for the applicant’s cognitive impairment and the practical difficulties the applicant had in conferring with his legal representatives including counsel in May and June 2021, a period of time which was appropriate or suitable for the applicant to obtain legal advice and give instructions to his legal representative after he was found fit to be tried on 8 April 2021 was by the time of the AVL conference on 15 July 2021.

54. Notwithstanding the impending trial date fixed for 25 October 2021 and the reasonable opportunity to obtain legal advice and give instructions to his legal representatives by 15 July 2021, the applicant did not plead guilty in mid-July 2021. Instead, he gave instructions to his legal representatives to negotiate on a lesser charge and, upon advice given by trial counsel, the applicant’s solicitors retained Dr Furst for the purpose of investigating a possible defence to the substantive charge. Notably, the retainer of Dr Furst on 28 July 2021 occurred 21 months after the applicant was committed for trial on 19 October 2019. That is not to imply any criticism of the applicant or his legal representatives for taking those steps at that time, but to observe that the applicant could have but did not take advantage of the Early Appropriate Guilty Pleas scheme which accommodated such investigations or negotiations following a finding of fitness, by applying for remittal of the proceedings to the Local Court.

55. It was not until 24 September 2021 that the applicant gave instructions to his legal advisers to plead guilty (subject to agreeing facts), following receipt of Dr Furst’s report on 21 September 2021 which advised that there was no mental health-based defence available to the applicant. That was the context in which the applicant’s counsel acknowledged at the sentence hearing that the applicant had pleaded guilty “at a late stage” and submitted that 10 per cent was the appropriate statutory discount. The new evidence sought to be relied upon on the proposed appeal does not support the conclusion that the applicant’s legal representatives misunderstood or did not fully appreciate the circumstances and timing of the applicant’s guilty plea or the applicable statutory sentencing discount.

56. On the hypothesis that such evidence is admitted on the proposed appeal, the applicant has not shown that there was a procedural irregularity in the sentencing proceedings such that those proceedings miscarried. When the new evidence together with all the relevant circumstances, including the mandatory consideration in s 25D(6) of the Sentencing Act are considered, the submission that the guilty plea entered on 8 October 2021 was made as soon as practicable after the applicant was found fit for trial on 8 April 2021 is untenable.

57. In my view, leave to appeal against sentence should be granted and the appeal should be dismissed.

Orders

58. I propose the following orders:

1. Grant leave to appeal.

2. Refuse the application to admit the affidavit of Mr Hassan sworn 16 August 2022 as additional evidence on the appeal.

3. Appeal against sentence dismissed.

59. DAVIES J: I agree with Gleeson JA.

60. WILSON J: I agree with Gleeson JA.

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Decision last updated: 27 March 2023