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90
Court of Criminal Appeal 17 September 2002

R v Palu

[2002] NSWCCA 381

Also reported as (2002) 134 A Crim R 174
Assault & violence
CRIMINAL LAW AND PROCEDURE SENTENCE EFFECT OF STATEMENTS BY OFFENDER IN PRE SENTENCE REPORT.

Citation: R v Palu [2002] NSWCCA 381
Court: New South Wales Court of Criminal Appeal
Date: 17 September 2002
Judge(s): Levine J, Hidden J, Howie J

Background

The respondent pleaded guilty in the District Court to maliciously inflicting grievous bodily harm under s 35 of the Crimes Act 1900, arising from a serious assault in a Fairfield car park that left the victim with a fractured skull, an extradural haematoma, permanent hearing loss, and expected long-term cognitive and physical impairment. The Crown accepted the guilty plea in full satisfaction of a two-count indictment that also included the more serious offence of inflicting grievous bodily harm with intent.

When the matter came before Coorey DCJ for sentencing on 26 April 2002, his Honour adjourned the proceedings to 29 November 2002 under s 11 of the Crimes (Sentencing Procedure) Act 1999 and granted the respondent bail. The Crown appealed, arguing the adjournment was an unjustified exercise of discretion given the seriousness of the offence and the inevitability of a full-time custodial sentence.

A complicating factor at the sentencing hearing was a dispute about statements the respondent had made about the circumstances of the offence in the pre-sentence report, and whether the Evidence Act 1995 governed those statements. That dispute appeared to deflect the sentencing judge from properly resolving the factual issues necessary to proceed to sentence.

  • Whether a Crown appeal under s 5D of the Criminal Appeal Act 1912 lies against an adjournment order made under s 11 of the Crimes (Sentencing Procedure) Act 1999
  • Whether Coorey DCJ's decision to adjourn sentencing under s 11 was a proper exercise of discretion, given the gravity of the offence and the likelihood of immediate imprisonment
  • What evidentiary weight, if any, attaches to statements made by an offender in a pre-sentence report about the circumstances of the offence
  • Whether this Court could proceed to resentence the respondent in the absence of findings of fact by the sentencing judge

Decision

The Court of Criminal Appeal confirmed, consistent with its recent decision in R v Trindall [2002] NSWCCA 364, that a s 11 adjournment order is amenable to Crown appeal under s 5D of the Criminal Appeal Act 1912. This point was not seriously contested.

On the substantive question, the Court found that the sentencing proceedings before Coorey DCJ had miscarried. His Honour had adjourned the matter without first making the findings of fact necessary to underpin any proper sentencing determination. The Court accepted that the dispute about the pre-sentence report and the Evidence Act had distracted the sentencing judge from the central task before him.

The Court also addressed the function of pre-sentence reports. Such reports serve to assist rehabilitation and advise on sentencing options, including suitability for community service orders under s 86(4) of the Crimes (Sentencing Procedure) Act. Officers preparing these reports record what the offender says but do not vouch for reliability. Accordingly, the Court confirmed that statements by an offender about the offence contained in a pre-sentence report carry little evidentiary weight unless corroborated by other material.

Although the Court held the appeal should be allowed, it declined to proceed to sentencing itself. The unresolved factual disputes were matters that should first be determined by the sentencing judge in the District Court, so that either party retains the ability to appeal those findings. The respondent's bail was continued pending the relisted hearing.

Orders Made

  • The appeal is allowed
  • The adjournment order made by Coorey DCJ to 29 November 2002 is quashed
  • The matter is returned to the District Court to be relisted before his Honour at the earliest opportunity convenient to the court and the parties
  • The respondent's bail is continued to the date fixed for the further sentencing hearing
  • A pre-sentence report is to be available for the adjourned hearing date

Key Takeaways

  • A Crown appeal under s 5D of the Criminal Appeal Act 1912 lies against an adjournment order made under s 11 of the Crimes (Sentencing Procedure) Act 1999, even where no fresh hearing date has been fixed, confirming the approach in R v Trindall.
  • Adjourning sentencing under s 11 without first resolving the disputed factual basis for the sentence constitutes a miscarriage of the sentencing proceedings, making the adjournment order susceptible to appellate intervention.
  • Statements made by an offender to a probation and parole officer about the circumstances of an offence, and recorded in a pre-sentence report, carry little evidentiary value unless supported by other material, because the officer reports what is said without assessing its reliability.
  • Where a sentencing judge has failed to make the necessary findings of fact, the Court of Criminal Appeal will ordinarily remit the matter rather than resentence, preserving each party's right to appeal the factual findings made at first instance.
  • Disputes about the application of the Evidence Act 1995 to pre-sentence report material, while capable of arising, should not deflect a sentencing court from the primary task of resolving the facts and imposing sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 86(4)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 33, 35
- Evidence Act 1995 (NSW)

Cases
- R v Trindall [2002] NSWCCA 364
- Chow v DPP (1992) 28 NSWLR 593
- The Queen v De Simoni (1981) 147 CLR 383
- Altham (1992) 62 A Crim R 126
- Tindall v Gunton (1994) 74 A Crim R 275
- R v Glen (NSWCCA, unreported, 19 December 1994)
- Henderson (NSWCCA, unreported, 5 November 1997)
- R v Qutami [2001] NSWCCA 353