Citation: [2015] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 17 July 2015
Judges: Leeming JA, Johnson J, Beech-Jones J
Background
The appellant pleaded guilty in the District Court to a series of serious offences committed across February 2013. These included attempting to steal a motor vehicle, breaking and entering an occupied dwelling at night and stealing from it, and driving in a manner dangerous to others while knowing police were in pursuit. The pursuit involved speeds of up to 130 km/h in 60 km/h zones, driving on the wrong side of the road, and eventually fleeing on foot until apprehended with the assistance of a police dog.
The District Court imposed an aggregate sentence of five years and six months imprisonment with a non-parole period of four years, commencing 26 February 2013.
The appellant's sole ground of appeal was that the solicitor who appeared at the sentencing hearing had been incompetent, and that this incompetence amounted to a miscarriage of justice. The Court noted that the former solicitor was not given an opportunity to provide an affidavit responding to the allegations made against him, a matter taken into account when assessing those allegations.
Legal Issues
- Whether the conduct of the former solicitor at the sentencing hearing constituted a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912.
- Whether the failure to obtain and tender a psychiatric report deprived the sentencing court of material that could have affected the outcome.
- Whether the failure to advise the appellant about the possibility of assisting police in locating a co-offender amounted to a miscarriage of justice.
- Whether the failure to obtain evidence from a family member caused a miscarriage of justice.
- Whether the failure to seek a finding of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which allows adjustment of the ratio between head sentence and non-parole period, amounted to a miscarriage of justice.
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, rejecting each limb of the incompetence argument. To establish a miscarriage of justice based on the conduct of a legal representative, the appellant was required to demonstrate that the representative failed to place before the sentencing court material of real substance that could have affected the result. Mere identification of things a solicitor could have done differently, without showing that the omitted material was genuinely capable of altering the outcome, was insufficient.
On the psychiatric report, the Court found that even if such a report had been obtained, the sentencing judge had already formed a clear and correct view that no sentence other than full-time custody was available given the appellant's extensive criminal history spanning four states and more than two decades. There was no realistic prospect that a psychiatric report would have materially altered that conclusion.
Regarding the submission that the appellant should have been advised about informing on a co-offender, the Court noted there was no evidence the appellant would have acted on such advice or that any assistance actually provided to police would have warranted a sentencing discount. On the absence of family evidence, the Court was satisfied that such evidence would have added nothing of substance beyond what the sentencing judge already knew from the materials before him.
On the special circumstances argument, the Court observed that the non-parole period already reflected a substantial period of supervision. Given the appellant's unbroken history of offending, there was nothing to suggest a longer parole period would have materially improved his rehabilitation prospects. No miscarriage of justice was established on any ground.
Orders Made
- Leave to appeal against the sentence imposed on 24 July 2014 granted.
- Appeal dismissed.
Key Takeaways
- A sentence appeal based on alleged incompetence of a legal representative requires more than identifying omissions; the appellant must show that the untended material was of real substance and could have affected the sentencing outcome.
- Where a sentencing court correctly identifies that full-time custody is the only available option given an offender's record, the absence of a psychiatric report will not ordinarily constitute a miscarriage of justice.
- Allegations of incompetence against a former solicitor carry less weight where that solicitor was not afforded an opportunity to respond, a limitation the Court of Criminal Appeal expressly acknowledged.
- A finding of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 is not made out merely by asserting the need for rehabilitation support on release; something compelling is required, particularly where an offender has been unable to remain conviction-free for any sustained period.
- In dismissing the appeal, the Court reinforced that the relevant test focuses on whether a real and identifiable injustice flows from the representative's conduct, not on whether different tactical choices could have been made.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 51B, 105A(1), 112(2), 154A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): Div 1A Pt 4, ss 32(1), 44(2), 53A
- Criminal Appeal Act 1912 (NSW): s 6(1)
- Criminal Procedure Act 1986 (NSW): s 166
- Inclosed Lands Protection Act 1901 (NSW): s 4
- Road Transport (Driver Licensing) Act 1998 (NSW): s 25A(1)(a)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW): s 9(1)(a)
Cases
- Nudd v R [2006] HCA 9
- TKWJ v R [2002] HCA 46; 212 CLR 124
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Jinnette v R [2012] NSWCCA 217
- Beale v R [2015] NSWCCA 120
- Garland v R [2009] NSWCCA 217
- Puan v R [2009] NSWCCA 194
- Kennedy v The Queen [2010] NSWCCA 260
- Pym v R [2014] NSWCCA 182
- Munro v Regina [2006] NSWCCA 350
- R v Fernando (1992) 76 A Crim R 58
- R v Abbott (1985) 17 A Crim R 355