R v White

[2018] NSWCCA 238

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v White [2018] NSWCCA 238

Hearing dates:

26 March 2018

Date of orders:

26 March 2018

Decision date:

24 October 2018

Before:

Bathurst CJ at [1]; Schmidt J at [14]; Hamill J at [15]

Decision:

(1)   Grant the Crown leave to amend the notice of appeal by adding the additional ground in terms articulated by the Crown earlier during the hearing.

 

(2)   Allow the appeal.

 (3)   Remit the sentencing proceedings to the District Court for [de]termination in accordance with law.

Catchwords:

SENTENCING – Sentencing procedure – Procedural fairness – Crown representative not heard on appropriateness of sentence imposed by sentencing judge – whether denial of procedural fairness to the Crown

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:

Nil

Category:

Principal judgment

Parties:

The Crown (appellant)
Louis White (respondent)

Representation:

Counsel:
N Adams (appellant)
D E Ozen (respondent)

  Solicitors:
Solicitor for Public Prosecutions (appellant)
Longton Legal Pty Ltd (respondent)

File Number(s):

2015/119742

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

14 December 2017

Before:

Conlon DCJ

File Number(s):

2015/119742

Judgment

1. BATHURST CJ: Mr Louis White (the respondent) pleaded guilty on 22 March 2016 to the charge of wounding Mr Patrick Thomas with intent to cause grievous bodily harm. On 14 December 2017, the sentencing judge imposed a sentence of two years imprisonment and suspended the sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as in force at the time.

2. The Crown appealed pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW). The sole ground of appeal was that the sentence was manifestly inadequate.

3. During the hearing of the appeal, it emerged that the real issue was whether the Crown had been denied procedural fairness in the sentencing proceedings. The Crown was granted leave to amend its grounds of appeal to add a ground raising this issue and the Court made the following orders:

“(1)   Grant the Crown leave to amend the notice of appeal by adding the additional ground in terms articulated by the Crown earlier during the hearing.

(2)   Allow the appeal.

(3)   Remit the sentencing proceedings to the District Court for [de]termination in accordance with law.”

4. These are my reasons for joining in these orders.

5. The history of the matter was as follows. As I have noted, on 22 March 2016, the respondent pleaded guilty to the charge in question. There was thereafter significant delay in the finalisation of the matter, and it was not listed for a sentencing hearing until 25 November 2016, some eight months after the plea of guilty was entered.

6. On that day, the respondent indicated his intention to make an application to withdraw the plea of guilty. That application was not heard for another ten months until 11 and 12 September 2017. The application was refused on 21 September 2017.

7. During the hearing of that application, the sentencing judge received some material relevant to the respondent’s subjective circumstances. Part of the material was an assessment by the respondent’s doctor prepared for the purpose of assessing whether the respondent qualified for the disability support pension.

8. On 21 September 2017, immediately prior to the refusal of the respondent’s application to withdraw his guilty plea, the Crown foreshadowed a detention application. It was conceded by the respondent that the application was an indication of the Crown’s view that the matter warranted the imposition of full time imprisonment. At that time, an exchange took place between the sentencing judge and the Crown in which the sentencing judge indicated that he did not regard it as “inevitable” that there would be a full-time custodial penalty. Later on the same day, after the sentencing judge had delivered his judgment on the respondent’s application, the Crown stated, in response to those comments, that if that was the sentencing judge’s preliminary view, then he would not bring the detention application.

9. On the same day, the sentencing judge ordered an assessment for an intensive corrections order (ICO Assessment). Neither an ICO Assessment nor any other form of assessment, such as a pre-sentence report or home detention assessment, was ever prepared or provided to the Court for assistance in the sentencing.

10. On 23 November 2017, when the matter was listed for sentence, the sentencing judge, at a time when the solicitor who had carriage of the matter for the Crown was not in Court, told counsel for the respondent that he had been informed that an ICO Assessment had not been undertaken. Counsel for the respondent informed the sentencing judge that he had been told informally that, because of his health, the respondent was unsuitable for the community service order component of an ICO. He asked the sentencing judge to order a home detention report, and the sentencing judge then stated that “The other question might be the imposition of the term and the suspending of that; that may be also on the cards too”.

11. The matter returned to Court on 14 December 2017. Both parties agreed that neither party had an opportunity to make any submissions and that the material relied upon by the sentencing judge in imposing the sentence, namely, a report of a Mr Tim Watson-Munro, was not before him on the sentencing proceedings. It was in those circumstances that, on the hearing of this appeal, the Crown was given leave to add an additional ground in the following terms:

“His Honour erred by imposing a suspended sentence on 14 December 2017 without hearing from the Crown representative as to the appropriateness of that sentence.”

12. In these circumstances, it is clear that there was, and I emphasise, inadvertently, a denial of procedural fairness.

13. The parties agreed that it was inappropriate for the Court in these circumstances to do anything but remit the matter to the District Court without making any comment about the sentence. This was the course which the Court adopted.

14. SCHMIDT J: I joined in the orders which the Court made for similar reasons to those given by the Chief Justice.

15. HAMILL J: On 26 March 2018 I joined in the orders referred to by Bathurst CJ at [3] above. The judgment of the Chief Justice articulates my reasons for joining in those orders.

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