Procedural fairness

[1-000] Proceedings must take place in open court

Sentencing proceedings must take place in open court and discussions must not take place in the chambers of the sentencer: R v Rahme (1991) 53 A Crim R 8; R v Foster (1992) 25 NSWLR 732 at 741; Bruce v The Queen (unrep, 19/12/75, HCA). In Pearce v The Queen (1998) 194 CLR 610 at [39], McHugh, Hayne and Callinan JJ quoted with approval Sir John Barry’s comment that the criminal law:

must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community’s generally accepted standards of what is fair and just.

If either party wish to adduce evidence of sensitive material, for example about an offender’s assistance to authorities, such information should ordinarily be done by way of a sealed envelope: R v Cartwright (1989) 17 NSWLR 243 at 257. Where such evidence is tendered, courts have jurisdiction to modify and adapt the general rules of open justice and procedural fairness by tailoring non-publication orders to ensure the offender has the opportunity to consider and test the accuracy of the evidence and to make submissions: HT v The Queen (2019) 93 ALJR 1307 at [43]–[46]; [60]; [87].

[1-010] Reasons for decision

In Markarian v The Queen (2005) 228 CLR 357 at [39], Gleeson CJ, Gummow, Hayne and Callinan JJ remarked: “The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public”.

Sentencers must give reasons for their decision. The statement of reasons forms a significant function in the administration of the criminal law: R v Thomson and Houlton (2000) 49 NSWLR 383 at [42]–[43]; R v Duffy [1999] NSWCCA 321 at [11]; R v JCE (2000) 120 A Crim R 18 at [19]. In Thomson and Houlton at [42], Spigelman CJ put the obligation in these terms:

Sentencing judges are under an obligation to give reasons for their decisions. Remarks on sentence are no different in this respect from other judgments. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done. The obligation of a Court is to publish reasons for its decision, not merely to provide reasons to the parties.

Remarks on sentence provide an oral explanation to the offender, the victim(s) and persons in court at the time when sentence is being passed: R v Hamieh [2010] NSWCCA 189 at [29]. The use of language which is “totally incomprehensible to the offender” is to be avoided where possible: R v Taylor [2005] NSWCCA 242 per Grove J at [10]. Sentence remarks must be intelligible to the lay listener or reader; they are one means by which the community is informed of the work of the courts: Taylor v R [2018] NSWCCA 255 at [53].

The requirement to give reasons for decisions has to be understood in the context of the environment in which each court operates. Generally speaking, more detailed reasons are required for matters dealt with on indictment. The Court of Criminal Appeal decisions are primarily directed to the District Court judges. However, a sentence judgment should not be constructed as a checklist where statutory or common law principles of sentencing are enumerated and then ‘ticked off’ to avoid the prospect of an appeal: Taylor v R at [51].

The reasons in Gallant v R [2006] NSWCCA 339 were two double-spaced pages of transcript. This was not in itself an indication of error but the brevity of the remarks risked the judge failing to adequately refer to matters of significance in the determination of sentence. The reasons were inadequate in relation to the standard non-parole period provisions.

A judge should do more than state the general sentencing principles that apply; more important is an explanation of how those principles have been applied: R v Van Ryn [2016] NSWCCA 1 at [123], [141]; Taylor v R at [52], [56]; Porter v R [2019] NSWCCA 117 at [67]. The offender and the community at large are entitled to know why and how a particular period of imprisonment has been assessed: Porter v R at [67]. Further, mere recitation of the facts for each offence will not satisfy the requirement to assess the objective seriousness of an offence: R v Van Ryn at [133], [141].

Matters dealt with on indictment

The obligation to give reasons requires a sentencing judge to identify which matters have been taken into account, especially aggravating factors: DBW v R [2007] NSWCCA 236 at [33]. Remarks on sentence should “adequately reveal [the judge’s] reasoning process”: R v Lesi [2010] NSWCCA 240 per Hoeben J at [36]. It is desirable that sentencing judges summarise precisely the facts giving rise to the offence(s), including findings in relation to all matters taken into account in mitigation or aggravation of sentence and the reasoning which leads to the sentence imposed: Thomas v R [2006] NSWCCA 313 at [16]. The reasons should, however briefly, state the findings of fact upon which the judge is persuaded and expose a process of reasoning for an appeal court. An appellate court will not assume the judge has taken into account an aggravating factor which is not contested where it is not clear and where there is no express rejection of submissions supporting the course: DBW v R at [37].

The judge erred in Gal v R [2015] NSWCCA 242 by making no reference to the facts of the offence and by failing to assess the objective seriousness of the offence despite references to seriousness in argument. There was an insufficient statement of the basis upon which the applicant was sentenced: Gal v R at [37]. A sentencing judgment should state or refer to the essential facts upon which an offender is sentenced and provide at least some assessment of, or reflection upon, the seriousness of the offences: Gal v R at [37], [39].

In R v Alcazar [2017] NSWCCA 51, the judge erred by failing to explain how he resolved the question of consent which was at issue on sentence. It was encumbent on the judge to explain how he had resolved that issue and why: R v Alcazar at [44]–[46].

There is a limit to which remarks on sentence can be scrutinised on appeal. Remarks on sentence are often delivered ex tempore. In R v McNaughton [2006] NSWCCA 242 at [48], Spigelman CJ remarked: “The conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed”.

Local Court

It is accepted that any scrutiny of the reasons given in remarks on sentence in the Local Court must take into account that the court is ordinarily dealing with a huge volume of work and has less time to deal with cases as exhaustively as those dealt with on indictment. In Acuthan v Coates (1986) 6 NSWLR 472 at 478–479, Kirby P said:

It is also to fall into the error of examining this unedited and unpunctuated record of ex tempore remarks in a busy magistrate’s court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates. When that substance is examined, it is sufficiently clear that the magistrate held the correct tests in mind and properly approached the exercise of the discretion reposed in him …

This principle in Acuthan v Coates was applied in the context of a statutory requirement to give reasons in Tez v Longley (2004) 142 A Crim R 122 at [33] and JIW v DPP (NSW) [2005] NSWSC 760 at [67]. The pressure under which courts of summary jurisdiction work has been acknowledged: Roylance v DPP [2019] NSWSC 933 at [13], [16]; Yassin v Williams [2007] WASC 8 at [31]–[34]; Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545 at [16], [60]. However, this does not obviate the need for reasons to be given, even if the proceedings are ex-parte: Roylance v DPP at [12]–[16].

[1-020] Contemporaneity between passing of sentence and expression of reasons

There must be contemporaneity between the handing down of the sentence and the expression of the judge’s reasons: R v CJP [2003] NSWCCA 187. The court said in CJP at [66]:

The separation of the imposition of the sentence from the expression of the appropriate reasons not only creates a sense of injustice in the mind of all concerned with the sentencing process but also creates significant practical difficulties.

The court accepted a submission at [68] that:

such separation tended to bring the sentencing process into disrepute, as it may suggest that the reasons are being moulded to fit in with a predetermined sentence, rather than the other way around.

[1-030] Published in oral form

The reasons for a decision should be published in oral form. In R v Bottin [2005] NSWCCA 254 at [12], Studdert J explained the logic of this requirement:

all in court can be made fully acquainted not only with the sentence or sentences being passed but with the reasons for such sentence or sentences as well. Obviously, this is of particular concern to the offender, any victim or victims, and any relatives of the victim or victims who may be present in court. Publication of reasons by oral means also affords the opportunity for correction if there is some obvious error revealed in the expression of the sentencing remarks.

In Curtis v R [2007] NSWCCA 11 at [30]–[31], the court held that the sentencing judge’s failure to publish the 70-page remarks orally breached the requirement stated in Bottin. The excuse given to the parties, that the judge’s voice would not sustain the exercise, was not a sufficient reason. The court acknowledged at [31] that “the sheer length of the remarks was itself a deterrent to oral delivery”, but this was “a reason for economy in the preparation of the remarks”.

[1-040] Opportunity of addressing the court on issues

Generally speaking, judges should afford both parties the opportunity of addressing and placing arguments before the court in proceedings for offences dealt with on indictment. This includes an opportunity to address the sentencer on penalty: R v Tocknell (unrep, 28/5/98, NSWCCA), citing R v Tait (1979) 24 ALR 473 at 476–477. In Tocknell, Hulme J said:

To deny a party that opportunity is also a fundamental breach of the requirements of procedural fairness. Of course, some latitude exists in the application of the principle … Sometimes a judge, conscious that he is about to make a decision in accordance with that sought by a party will, particularly in a busy list, not invite address by that party. Not infrequently a party which has received an indication from a tribunal of an intention to make a decision in that party’s favour will see no need to address. For many years it was almost an invariable practice for the Crown not to address on penalty and, in those days, a judge could be pardoned for relying on any prosecutor who wished to depart from this practice to so indicate. However, for some years now it has been common for persons appearing for the Crown in the District and Supreme Court to address on penalty and, indeed, it has been made clear that there is an obligation on the Crown to assist the judge in the sentencing exercise — Tait v Bartley 24 ALR 473 at 476–7. If there is the remotest possibility that a decision will be adverse to a party’s interest, a judge must allow, and in my view should invite, that party or its legal representative to address the court.

While it is permissible for a judge to form a preliminary view of the appropriate sentence, and while a judge is not obliged to listen to meritless argument, the principles of impartiality and procedural fairness require that an offender’s submissions be listened to without pre-judgment: Anae v R [2018] NSWCCA 73 at [51]–[54]. The obligation to accord procedural fairness to the parties was emphasised by the High Court in DL v The Queen (2018) 92 ALJR 764 at [39]. In that case, the failure of the appellate court to put the offender’s counsel on notice that the court intended to depart from concessions made by the prosecutor in the sentence proceedings resulted in a miscarriage of justice. So too in HT v The Queen (2019) 93 ALJR 1307, where the appellant was not given access to evidence of his assistance to authorities for the purposes of a Crown appeal against his sentence, and could neither test the evidence or make submissions: HT v The Queen at [21], [23], [27], [57]; [66]–[67].

However, a sentencing judge is not obliged to raise with the parties factual findings that should have been obvious, including where the offender’s evidence is inherently implausible. The parties bear the onus of presenting the evidence each thinks necessary for the court to properly determine the issues. It is not the sentencing court’s responsibility to specifically enumerate matters in dispute and raise possible findings of fact before making them. This would place an impossible burden on sentencing courts: Gwilliam v R [2019] NSWCCA 5 at [124]–[128].

Agreed facts

The opportunity to address on relevant matters has been applied in several contexts. In Yaghi v R [2010] NSWCCA 2 at [50], RA Hulme J said that a sentencer will err:

if he or she fails to give notice that he or she is minded to sentence upon a basis which differs from that contained in a statement of agreed facts and fails to provide an opportunity for the parties to address on that issue.

See also R v Falls [2004] NSWCCA 335 per Howie J at [37] and Purdie v R [2019] NSWCCA 22 per Price J at [54]. It was open to the sentencing judge in Zammit v R [2010] NSWCCA 29 at [27] to reject the offender’s sworn evidence contradicting agreed facts since the judge properly raised the issue with the parties. Similarly, there is no error where the judge indicates a view on a topic, considers it further, contemplates a different approach, and then informs the parties for the purpose of permitting an opportunity for further submissions: Yaghi v R at [53], quoting R v Howard [2004] NSWCCA 348 at [47] with approval.

Later increasing a proposed sentence

Procedural fairness is denied where the judge indicates the sentence he or she will impose at the hearing but later increases it without notice when judgment is delivered: Baroudi v R [2007] NSWCCA 48 at [33]; Button v R [2010] NSWCCA 264 at [18]; Weir v R [2011] NSWCCA 123 at [78]-[80]; Ng v R [2011] NSWCCA 227 at [48]-[51]. Latham J said in Button v R at [18] that whatever the reason for the judge’s departure, the applicant was “entitled to receive the sentence that was accepted by the Judge and the parties as an appropriate sentence in all the circumstances”. Justice Price said in Baroudi v R, at [33], Sully and Howie JJ agreeing, that it was preferable for the judge to have indicated that his views were only tentative. However, in Weir v R, it was held there was a breach of procedural fairness notwithstanding the judge expressed a “tentative” view as to the proposed sentence (see [69], [75]) because the judge had also made other comments that it is “highly likely that that would be the sentence”: at [69]–[71], [75]–[77]. For the judge to later impose a lengthier sentence than the proposed sentence occasioned “a practical injustice and substantial unfairness”: Weir v R at [78].

The cases of Button v R and Weir v R, which involved indications about the proposed sentence, are to be distinguished from those where the procedural breach is a failure by the judge to foreshadow the rejection of uncontested evidence: R v Wang [2013] NSWCCA 2 at [81]. Where that occurs, the question on appeal is whether, assuming the evidence was accepted, a less severe sentence is warranted in law under s 6(3) Criminal Appeal Act 1912. Only when that question is answered in the affirmative is it proper for the court to ask for submissions on the issue or to remit the matter for re-sentence on that premise: R v Wang at [81].

During submissions in Fairbairn v R (2006) 165 A Crim R 434 at [37], the judge indicated that it was not appropriate to impose cumulative sentences but did so after the matter was reserved for judgment. The court held that the applicant was denied the opportunity of having his legal representative put arguments in favour of concurrency.

Fairbairn v R is to be contrasted with Toole v R [2014] NSWCCA 318 at [47], where the judge was held to be entitled to impose partially cumulative sentences despite the Crown’s written submission conceding that concurrent sentences could (rather than should) be imposed. It was not a case where the judge changed his or her view like in Fairbairn v R.

Information in other cases, prevalence and receiving evidence from the co-offender

A judge who intends to rely on information he or she has obtained in other cases, should disclose his or her intention to the parties to afford the parties an opportunity of objecting or of taking other steps: R v JRB [2006] NSWCCA 371 at [42].

However, a judge is entitled to sentence at a range above that suggested by the Crown at the hearing and is not obliged to give specific reasons in the remarks for doing so: R v Weininger (2000) 119 A Crim R 151 at [45], and see Weininger v Queen (2003) 212 CLR 629 at [84].

An appellate court can deny procedural fairness by departing from a previous non-binding authority without giving notice that it was considering it, and without the appellant having a proper opportunity to make submissions: Parker v Comptroller-General of Customs (2009) 83 ALJR 494 (although it did not occur in that case).

In R v House [2005] NSWCCA 88 at [23] it was held that if a judge decides that the increasing prevalence of a particular crime calls for an increase in the pattern of sentencing, counsel should be warned to enable the parties to address on the issue.

In Le v R [2007] NSWCCA 330, evidence which was adverse to the applicant’s assertion that he had acted under duress was given by his co-offender. It was received by the court when the applicant and his legal representative were absent. The court held at [29]:

Procedural fairness required that [the co-offender’s] evidence be given when the applicant and his counsel were present and could challenge it. Procedural fairness also called for the opportunity to be provided to the applicant in further evidence to deal with what [the co-offender’s] had said.

Adjournment of sentence proceedings

A refusal to stand down or adjourn sentence proceedings to allow a party the opportunity to obtain further supporting documents can in some circumstances amount to a denial of procedural fairness: Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545 at [51].

There is a line of West Australian and South Australian authority quoted in Yassin v Williams [2007] WASC 8 at [14]–[18] which holds that a court considering a sentence of immediate imprisonment for a self-represented defendant should first inform the defendant of that prospect and offer the opportunity of an adjournment for the purpose of obtaining legal advice where it is possible to obtain it. See further Scanlon v Bove [2008] WASC 213 at [66] and Powell v WA [2010] WASC 54 at [23].

[1-045] Excessive intervention by the court

On some occasions an unsatisfactory statement of facts is presented to the court in the sentencing proceedings. It is not the function of the court to perform an inquisitorial role in cases where this occurs. The court should adjudicate upon the issues raised by the parties: Ellis v R [2015] NSWCCA 262 at [70]; Chow v DPP (1992) 28 NSWLR 593. The court is entitled to seek clarification of matters raised in evidence but in drug supply cases it cannot insist on an offender to identify his or her co-offenders: Ellis v R at [68] citing Pham v R [2010] NSWCCA 208 at [27] and R v Baleisuva [2004] NSWCCA 344 at [29].

Excessive intrusion by the court in adversarial proceedings to fill gaps puts at risk a fair trial and impairs the judicial officer’s ability to properly assess the demeanour of a witness: Ellis v R at [57]. A reasonable apprehension of bias may arise where the judge intervenes in proceedings to the extent of taking over the leading of evidence from a witness as this suggests they have stepped beyond the role of impartial arbiter of the facts as presented by the parties: Tarrant v R [2018] NSWCCA 21 at [67]–[72]. However, it is not necessary to show a reasonable apprehension of bias where excessive intrusion by the judicial officer is alleged by an offender on appeal: Ellis v R at [65]. The ultimate question must always be whether intervention was unjustifiable and resulted in a miscarriage of justice: Ellis v R at [57]. A miscarriage of justice will occur where the intervention prevents a party from properly presenting his or her case: Ellis v R at [65].

A judge’s intervention in proceedings, by requesting earlier versions of expert reports or questioning a witness, may disclose bias against a party if it suggests the judge would not assess the evidence and arguments solely on their merits: Mansweto v R [2019] NSWCCA 232 at [59]–[61]. Such intervention in the particular circumstances of that case was warranted because the conduct of the defence case delayed finalising the sentence proceedings.

[1-050] Opportunity of meeting the whole case

The offender must have a fair opportunity of meeting the case against him or her: Thompson v The Queen (1999) 73 ALJR 1319 at [13]–[14]. In both R v Mohamad [2005] NSWCCA 406 at [14] and R v Ryan (2003) 141 A Crim R 403 at [29], the offender was not “put on notice by the Crown or by the presiding judge that his assertion was not to be accepted”. In The Queen v Olbrich (1999) 199 CLR 270 at [52], Kirby J said that the accused should be made aware of all of the material relied upon by the court:

In the event that asserted facts are disputed, those facts must be proved or disregarded. It is the duty of the judge to ensure (if there be any doubt) that the accused is aware of all of the material provided to the court upon which the judge will rely in determining the sentence.

[1-060] Appeals

If the judge is contemplating an increased sentence in a severity appeal from the Local Court to the District Court he or she must indicate this fact so that the appellant can consider whether or not to apply for leave to withdraw the appeal: Parker v DPP (1992) 28 NSWLR 282 at 295. The principle extends to a change in the character of the sentence from an alternative form of imprisonment to one served by way of full-time detention: Jones v DPP (1994) 76 A Crim R 422. Justice Kirby collects the authorities in a discussion in R H McL v The Queen (2000) 203 CLR 452 at [126]–[127]. Notice of an increased sentence is not required in a Crown appeal against sentence (from the Local Court) because the Crown is seeking an increase and the respondent has no statutory right to withdraw the appeal: Barendse v Comptroller-General of Customs (1996) 93 A Crim R 210.

See also Fact finding at sentence at [1-455].

[1-070] Warnings for high risk and terrorism-related offenders

A court sentencing a person for a:

serious offence is to cause the person to be advised of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the offence under s 25C. A serious offence is defined in s 4(1) as including a serious sex offence or a serious violence offence. Those terms are defined in ss 5(1) and 5A respectively.
NSW indictable offence is to cause the person to be advised of the existence of the Terrorism (High Risk Offenders) Act 2017 and of its application to the offence: s 70. A “NSW indictable offence” is defined in s 4(1). However, in determining whether the particular person needs to be advised of the operation of the Act, regard should also be had to the definition of an “eligible offender” in s 7 and the definitions of a “convicted NSW terrorist offender” in s 8, a “convicted NSW underlying terrorism offender” in s 9(1) and a “convicted NSW terrorism activity offender” in s 10(1).

The following suggested form of words for use in respect of the Crimes (High Risk Offenders) Act includes a brief explanation of the operation of the Act and an encouragement to the offender to undertake rehabilitation (see s 3, which sets out the objects to the Act):

I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006, which applies to “serious offences” including the offence for which you have been sentenced.

In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the court considers you would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.

It is, therefore, in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

[Add, for the purposes of the Terrorism (High Risk Offenders) Act 2017:

Conduct that you engage in while you are in custody may also affect whether or not you could be subject to ongoing supervision or detention after your sentence for this offence is completed.]

The form of words suggested above could also be adapted for use for the purpose of informing the person of the existence of the Terrorism (High Risk Offenders) Act as the objects of this Act are, relevantly, in identical terms to the Crimes (High Risk Offenders) Act.

However, the terms of s 70 Terrorism (High Risk Offenders) Act are broader because it appears to suggest an offender sentenced to a term of imprisonment for any NSW indictable offence should be informed of the potential operation of the Act. The court should seek the assistance of the parties before informing the person of the operation of this Act. Note also s 16 which provides that the Terrorism (High Risk Offenders) Act does not limit the circumstances in which an order can be made in respect of an eligible offender under the Crimes (High Risk Offenders) Act.

For an example of orders made under the Crimes (High Risk Offenders) Act, see R v ZZ [2013] NSWCCA 83 at [149].