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Supreme Court 5 October 2016

R v Obeid (No 10)

[2016] NSWSC 1419

Public order & justice offences
CRIME SENTENCING HEARING CROWN APPLICATION FOR ADJOURNMENT NO QUESTION OF PRINCIPLE

Citation: R v Obeid (No 10) [2016] NSWSC 1419
Court: Supreme Court of New South Wales
Date: 5 October 2016
Judge(s): Beech-Jones J

Background

Following a jury trial in July 2016, the accused was convicted of one count of wilful misconduct in public office. A sentencing hearing was originally scheduled for August 2016, but had to be adjourned after the accused suffered a stroke.

Directions were made requiring the accused's medical and other supporting material to be served by 21 September 2016. That deadline was not met, and the material was not served until 28 September 2016, just days before the rescheduled sentencing hearing on 6 October 2016.

The late-served material included a neurologist's report opining on the accused's life expectancy and the potential impact of incarceration on his lifespan. The Crown applied for a further adjournment on the basis that it had insufficient time to obtain a responsive medical opinion before the 6 October hearing date.

  • Whether fairness to both the Crown and the accused required the sentencing hearing to be adjourned.
  • How to balance the public interest in minimising delay between conviction and sentencing against the procedural difficulties created by the parties' non-compliance with directions.
  • How to accommodate the availability of senior counsel for both sides when relisting the matter.

Decision

Beech-Jones J granted the Crown's adjournment application. The primary driver was the late service of medical evidence, particularly the neurologist's report addressing the accused's life expectancy and the claimed two-year reduction in lifespan for every twelve months of incarceration. Given the specialised nature of that opinion, the Crown could not reasonably be expected to respond to it within the short window available before 6 October 2016.

The judge noted that both parties had also failed to comply with the direction requiring written submissions to be exchanged before the hearing. That mutual non-compliance compounded the difficulty and, in practical terms, made it impossible for the sentencing proceedings to proceed on 6 October.

His Honour acknowledged a strong, if not overwhelming, public interest in minimising the time between a jury's verdict and the imposition of appropriate punishment. However, given the significance of the medical issues, the risk of a further adjournment if the matter were listed on dates when the Crown Prosecutor was unavailable, and the accused's entitlement to be represented by the senior counsel who appeared at trial, the balance favoured listing the hearing at a date convenient to both sides.

The matter was ultimately relisted for 1 and 2 December 2016, with a sentence to be delivered before the end of the court term on 16 December 2016. The judge made detailed directions for the service of evidence, written submissions, and expert reports, and granted leave to the parties to issue subpoenas for the authors of statements and medical reports.

Orders Made

  • The 6 October 2016 listing was vacated.
  • The sentencing hearing was fixed for Thursday 1 December and Friday 2 December 2016.
  • Both parties were directed to file written submissions on sentence by 5pm on Thursday 17 November 2016.
  • The Crown was directed to serve all evidence, including medical evidence, by Friday 4 November 2016.
  • The matter was stood over for further directions at 9:30am on Friday 18 November 2016.
  • The parties were granted leave to issue subpoenas for witnesses to attend and give evidence at the sentence hearing on 1 December 2016.
  • Justice Health was directed to provide an updated report addressing the matters in Dr Rosen's report of 25 September 2016, if possible by the end of October 2016.

Key Takeaways

  • Fairness to both the prosecution and an accused person can require a sentencing adjournment where one party has insufficient time to respond to specialised medical evidence served late by the other side.
  • The Supreme Court reaffirmed that there is a strong, if not overwhelming, public interest in minimising the gap between a jury verdict and the imposition of punishment, even where that principle must yield to procedural necessity.
  • Non-compliance by both parties with court directions for the service of written submissions materially contributed to the delay, a circumstance the court noted with evident disapproval.
  • Where complex medical evidence goes to the potential effect of incarceration on an accused's health and lifespan, the court treated the Crown's need to obtain a responsive expert opinion as a legitimate basis for granting more time.
  • Availability of senior counsel who appeared at trial is a relevant consideration when relisting a sentencing hearing, particularly where medical issues of potential significance are in contest.

Legislation and Cases Referenced

Legislation: None cited in the judgment.

Cases: None cited in the judgment.