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Court of Criminal Appeal 27 April 2015

Murray v R

[2015] NSWCCA 75

Firearms & weaponsPublic order & justice offences
APPEAL REASONABLE APPREHENSION OF BIAS SENTENCING APPEAL AGAINST SENTENCE GUILTY PLEA ENTERED APPLICATION FOR RECUSAL REJECTED

Citation: Murray v R [2015] NSWCCA 75
Court: NSW Court of Criminal Appeal
Date: 27 April 2015
Judges: Basten JA, Simpson J, Adamson J

Background

The applicant pleaded guilty on the first day of his trial to discharging a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW). The victim, a young woman, was shot in the face and a bullet lodged in her brain. The offence carries a maximum penalty of 25 years imprisonment.

The sentencing judge in the District Court had previously presided over a separate trial at which the applicant was acquitted by a jury of a serious offence committed shortly after his release on parole. During the sentencing proceedings for the firearms offence, the judge stated on the record that he was "satisfied beyond reasonable doubt" that the applicant had committed that earlier offence, despite the acquittal. When asked to disqualify himself, the judge declined and proceeded to sentence the applicant to 20 years imprisonment with a non-parole period of 15 years.

The applicant sought leave to appeal on two grounds: that the sentencing judge should have recused himself due to apprehended bias, and that the parties had proceeded throughout on the assumption that a utilitarian discount would be applied to the sentence for the guilty plea, yet no such discount was given and no warning was provided.

  • Whether the sentencing judge's expressed view that the applicant was guilty of an offence for which he had been acquitted gave rise to a reasonable apprehension of bias requiring recusal.
  • Whether the failure to give any discount for the utilitarian value of the guilty plea, without prior notice that no discount would be awarded, constituted a denial of procedural fairness.
  • Whether a sentence affected by apprehended bias is a nullity, or instead a valid but appealable decision, and what consequences follow for jurisdiction and orders on appeal.

Decision

On the first ground, the Court accepted that the sentencing judge's statements created a reasonable apprehension of bias. The test is whether a fair-minded lay observer, informed of the circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the sentencing task. The judge's express statement that he was personally satisfied beyond reasonable doubt of the applicant's guilt of the offence for which the jury had acquitted him went well beyond noting the existence of that prior proceeding. The Court found the application for recusal should have been granted.

On the second ground, Basten JA found that both parties had proceeded throughout the sentencing hearing on the clear assumption that a utilitarian discount under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) would be applied. The judge gave no indication he intended to depart from that assumption, and no discount was ultimately awarded. The Court held this amounted to a denial of procedural fairness because the applicant had no opportunity to address the issue before sentence was passed. Simpson J agreed there was substance in both grounds and that the denial of procedural fairness alone warranted setting the sentence aside. Adamson J preferred to express no view on the second ground, given that remittal was in any event appropriate.

On the jurisdictional question, the Court considered whether a sentence tainted by apprehended bias was a nullity (and therefore not capable of being the subject of an appeal) or a valid but flawed decision open to appellate correction. Basten JA concluded that the better view was that such a sentence was not a nullity but a decision subject to appeal in the ordinary way. The Court had jurisdiction under ss 5 and 12 of the Criminal Appeal Act 1912 (NSW) to set aside the sentence and remit the matter for resentencing, rather than resentencing the applicant itself. The Court noted that no criticism had been made of the sentencing judge's substantive reasoning on objective seriousness, but declined to engage with the sentencing exercise itself.

Orders Made

  • Leave granted to appeal against the sentence imposed in the District Court on 7 August 2013.
  • Appeal allowed and sentence set aside.
  • Matter remitted to the District Court for sentencing according to law.

Key Takeaways

  • A sentencing judge's on-the-record statement that he was personally satisfied of an offender's guilt of a charge on which the offender had been acquitted by a jury was sufficient to give rise to a reasonable apprehension of bias, requiring recusal.
  • Where all parties proceed throughout sentencing on the shared assumption that a utilitarian discount for a guilty plea will be applied, the sentencing court must give notice before departing from that assumption. Failing to do so constitutes a denial of procedural fairness.
  • A sentence infected by apprehended bias is not automatically a nullity. The Court of Criminal Appeal treated it as an appealable decision and exercised its jurisdiction under the Criminal Appeal Act 1912 (NSW) to set it aside and remit the matter.
  • Under s 12(2) of the Criminal Appeal Act 1912 (NSW), remittal of a matter to the District Court for resentencing is an available remedy even where the appellate court does not itself conclude that a different sentence is warranted in law.
  • Although the appeal was upheld on both grounds, the substantive assessment of objective seriousness by the sentencing judge was not criticised, and the Court of Criminal Appeal expressly declined to conduct its own sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 12

Cases
- British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283
- Calvin v Carr [1980] AC 574
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
- Johnson v Johnson [2000] HCA 48; 201 CLR 488
- Lee v The Queen [2014] HCA 20; 308 ALR 252
- Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; 244 CLR 427
- Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- State of New South Wales v Kable [2013] HCA 26; 87 ALJR 737