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21
Court of Criminal Appeal 10 March 2010

O'NEIL-SHAW v THE QUEEN

[2010] NSWCCA 42

Assault & violence
APPEAL CRIMINAL SENTENCE DENIAL OF PROCEDURAL FAIRNESS REMITTAL NECESSARY WHERE FACT FINDING MISCARRIED

Citation: O'Neil-Shaw v The Queen [2010] NSWCCA 42
Court: Court of Criminal Appeal, New South Wales
Date: 10 March 2010
Judge(s): Basten JA; Howie J; Johnson J

Background

The applicant pleaded guilty mid-trial to maliciously inflicting grievous bodily harm with intent, contrary to s 33 of the Crimes Act 1900 (NSW), after launching a knife attack on his stepfather in the family home. The offence carried a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. The District Court sentenced the applicant to eight years imprisonment with a non-parole period of four years.

At the sentencing hearing, the applicant tendered affidavits from multiple family members and others describing his stepfather as controlling and violent towards the family. The prosecution did not seek to cross-examine any of those deponents. The prosecution tendered its own affidavits from people outside the family who described the stepfather favourably, and the applicant did not cross-examine those deponents either, on the basis that they had no direct knowledge of the family's private experiences.

The sentencing judge, having observed the stepfather give evidence during the trial before the plea was entered, effectively rejected the applicant's uncontradicted affidavit evidence about the stepfather's past conduct. The applicant sought leave to appeal, arguing the sentencing proceedings miscarried because of a denial of procedural fairness.

  • Whether a sentencing judge denies an offender procedural fairness by rejecting uncontradicted affidavit evidence without giving the offender an opportunity to address the basis for that rejection
  • Whether the nature of the relationship between an offender and a victim, including a history of abuse or controlling behaviour, is a relevant factor going to the offender's moral culpability at sentencing
  • What consequences follow where a sentencing fact-finding process has miscarried, including whether remittal should be to a differently constituted court

Decision

The Court of Criminal Appeal found that the sentencing judge had impermissibly rejected the applicant's uncontradicted evidence about the stepfather's past conduct. The judge had relied on his own impressions of the stepfather formed during the trial, without disclosing that he intended to use that assessment to reject the affidavit evidence and without affording the applicant an opportunity to respond. That process constituted a denial of procedural fairness.

The Court confirmed that the moral culpability of an offender is a relevant sentencing consideration, and that the nature of the relationship between offender and victim forms part of that assessment. Evidence of a victim's prior violent or controlling conduct towards an offender can bear directly on the degree of moral culpability, even where it does not amount to a legal defence or provocation in the formal sense.

The Court also addressed the procedural consequences of the miscarriage. Where a sentencing court's fact-finding has gone wrong in a way that cannot simply be corrected on appeal, remittal for resentencing is the appropriate remedy under s 12(2) of the Criminal Appeal Act 1912 (NSW). The original sentence was quashed and the matter remitted for a fresh sentencing hearing.

On the question of which judge should conduct the resentencing, the Court held that justice required the matter to proceed before a differently constituted court. Because the original sentencing judge had made findings tainted by the procedural irregularity, it would be inappropriate for the same judge to conduct the fresh hearing. Importantly, the Court directed that the fresh sentencing judge should approach the task completely independently, without treating the quashed sentence as any form of upper limit or benchmark.

Orders Made

  • Leave to appeal granted
  • Appeal allowed and the sentence imposed by the District Court on 10 March 2009 quashed
  • Matter remitted to the District Court for resentencing before a differently constituted court

Key Takeaways

  • A sentencing judge who intends to reject uncontradicted evidence by relying on impressions formed during an earlier stage of proceedings must disclose that intention and give the offender an opportunity to address it; failure to do so constitutes a denial of procedural fairness.
  • The history of the relationship between an offender and a victim, including evidence of the victim's past violent or controlling conduct, is capable of being a relevant factor in assessing the offender's moral culpability at sentencing.
  • Where a sentencing court's fact-finding process miscarries, the Court of Criminal Appeal may remit the matter for a fresh sentencing hearing rather than resentencing itself, particularly where the miscarriage is procedural rather than a simple error of discretion.
  • Remittal to a differently constituted court is appropriate where findings made by the original sentencing judge were tainted by the procedural irregularity, applying principles analogous to those in Livesey v New South Wales Bar Association (1983) 151 CLR 288.
  • On remittal, the fresh sentencing judge is not bound by or constrained by the quashed sentence; that sentence is to be set entirely to one side, and the sentencing exercise is to be conducted afresh according to the facts found and applicable sentencing principles.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 27, 33
- Criminal Appeal Act 1912 (NSW), ss 6, 12

Cases
- Anderson v R [2008] NSWCCA 211
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- Edwards v R [2009] NSWCCA 199
- GAS v The Queen (2004) 217 CLR 198
- Histollo Pty Limited v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661
- HSH Hotels (Australia) Limited v Multiplex Constructions Pty Limited [2004] NSWCA 302
- Livesey v New South Wales Bar Association (1983) 151 CLR 288
- Malvaso v The Queen [1989] HCA 58; 168 CLR 227
- MWJ v The Queen [2005] HCA 74; 80 ALJR 329
- The Queen v Olbrich (1999) 199 CLR 270
- R v O'Neill [1979] 2 NSWLR 582
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- R v SWC [2007] VSCA 201; 175 A Crim R 71
- Tarrant v R [2007] NSWCCA 124
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124