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Court of Criminal Appeal 28 July 2014

Milsom v R

[2014] NSWCCA 142

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE PROCEEDINGS PLEA OF GUILTY IRREGULARITIES IN SENTENCE PROCEEDINGS WHETHER APPREHENDED BIAS ESTABLISHED HEARD BY ANOTHER JUDGE.

Citation: Milsom v R [2014] NSWCCA 142
Court: Court of Criminal Appeal, New South Wales
Date: 28 July 2014
Judges: Hoeben CJ at CL, Rothman J, Beech-Jones J

Background

The applicant pleaded guilty in the District Court to armed robbery in company under s 98 of the Crimes Act 1900, arising from a violent early-morning robbery of a convenience store in Glebe on 18 April 2012. The applicant and his co-accused were armed with an axe, a knife, and a replica pistol. The store attendant was assaulted, wounded, and threatened throughout the ordeal. The offence carried a maximum sentence of 25 years imprisonment and a standard non-parole period of seven years.

Sentence proceedings took place over three hearing dates before a District Court judge, with judgment delivered on 13 September 2013. The applicant received a non-parole period of two years and six months. His co-accused received a longer non-parole period of three years, despite the applicant's apparently greater role in the offending.

The applicant sought leave to appeal from that sentence on seven grounds, centring on serious procedural irregularities during the hearing, apprehended bias on the part of the sentencing judge, and alleged errors in the substantive sentencing exercise.

  • Whether the sentencing judge's extensive questioning of the applicant during proceedings amounted to a denial of procedural fairness (the hearing rule)
  • Whether an unrecorded private conversation between the sentencing judge and counsel in a court antechamber gave rise to apprehended bias
  • Whether the sentencing judge's failure to disqualify himself for apprehended bias, without giving reasons, constituted error
  • Whether the sentencing judge reversed the onus of proof by requiring the applicant to disprove that the axe was purchased in preparation for the robbery
  • Whether the sentence was manifestly excessive, and whether the judge failed to adequately account for the applicant's mental illness and intoxication
  • Whether the applicant suffered a justifiable sense of grievance given the lighter sentence imposed on his co-accused

Decision

The Court of Criminal Appeal allowed the appeal on Ground 1, finding that the sentence proceedings had miscarried in multiple respects. The sentencing judge had cross-examined the applicant aggressively on two occasions about the circumstances of acquiring the axe and about his drug-related offending history, in a manner inconsistent with the role of a neutral adjudicator. The Court found this constituted a denial of procedural fairness, as the applicant was not properly on notice that findings of this character were being contemplated, and was not given adequate opportunity to respond.

The Court placed particular emphasis on an unrecorded conversation that occurred in a court antechamber, during which the sentencing judge indicated to counsel that he could not send the applicant to gaol and urged the prosecutor to advise the Director of Public Prosecutions not to appeal. This private communication, which took place outside the formal record, was found to generate a reasonable apprehension of bias in the mind of a fair-minded lay observer. The Court found that the subsequent resumption of proceedings on 19 September 2013 did not dispel that apprehension; a reasonable observer might well have viewed the resumed hearing as a facade.

Rothman J added that the sentencing judge had also reversed the onus of proof by effectively requiring the applicant to prove he had not purchased the axe with the robbery in mind, when proof of planning was a matter for the prosecution to establish as an aggravating factor. While no issue had been taken on this point at the time, his Honour noted this as a further illustration of the procedural irregularities that infected the proceedings.

Because the success on Ground 1 required the sentencing judgment to be set aside entirely, the Court did not proceed to determine the remaining grounds. Given that disputed factual findings remained to be made, the matter could not be re-sentenced by the Court of Criminal Appeal itself. The proceedings were remitted to the District Court for rehearing, with a direction that the rehearing be conducted by a different judge.

Orders Made

  • The sentence imposed by Maiden DCJ on 13 September 2013 is quashed.
  • The sentence proceedings are remitted to the District Court for rehearing by a different judge.
  • The applicant's bail is continued until further order.

Key Takeaways

  • A sentencing judge who engages in sustained cross-examination of a defendant, in a manner that goes beyond legitimate clarification and resembles advocacy, risks denying the defendant a fair hearing in breach of the hearing rule.
  • Private, unrecorded communications between a judicial officer and counsel, held outside the formal proceedings, can independently ground a finding of apprehended bias, assessed by reference to what a fair-minded lay observer would reasonably conclude.
  • Apprehended bias does not require proof of practical disadvantage or actual error in the resulting judgment. Once a reasonable apprehension of pre-judgment is established, the proceedings are tainted and must be redone regardless of whether the ultimate outcome was otherwise open to the sentencing judge.
  • Where a sentencing judge treats proof of an aggravating factor, such as planning, as a matter for the defendant to disprove rather than for the Crown to establish, the onus of proof is reversed.
  • In dismissing the substantive sentencing grounds, the Court of Criminal Appeal confirmed that where a ground of procedural unfairness requires the entire sentence to be set aside, and disputed factual findings remain, the matter must be remitted for full rehearing rather than re-sentenced by the appellate court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 98, 556A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 21A(3)(b)

Cases:
- Baroudi v Regina [2007] NSWCCA 48
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Branko Balic (No 2) (1994) 75 A Crim R 515
- Button v R [2010] NSWCCA 264
- CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
- House v R [1936] HCA 40; 55 CLR 499
- K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501
- Madden v R [2011] NSWCCA 254
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Ng v R [2011] NSWCCA 227
- O'Neil-Shaw v R [2010] NSWCCA 42
- Parker v DPP (1992) 28 NSWLR 282
- R v Foster (1992) 25 NSWLR 732
- R v Orchard [2013] NSWCCA 342
- R v Tait and Bartley (1979) 46 FLR 386; 24 ALR 473
- Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
- Tran v Regina [2014] NSWCCA 85
- Weir v Regina [2011] NSWCCA 123