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Court of Criminal Appeal 10 December 2020

Momoa v R

[2020] NSWCCA 328

Theft & property

Citation: Momoa v R [2020] NSWCCA 328
Court: Court of Criminal Appeal, New South Wales
Date: 10 December 2020
Judge(s): McCallum JA at [1]; Johnson J at [51]; R A Hulme J at [52]

Background

The applicant (identified by pseudonym) pleaded guilty to two offences of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 20 years' imprisonment. At sentencing in the Campbelltown District Court in December 2019, the sentencing judge imposed an aggregate term of 4 years and 6 months with a non-parole period of 2 years and 3 months, allowing a 25% discount for the guilty pleas.

The applicant sought leave to appeal on the basis that his sentencing solicitor had failed to place before the sentencing judge two significant mitigating factors: evidence of his substantial assistance to police authorities, and evidence of his diagnosed mental illness (for which he was unmedicated at the time of the offences).

The Crown sought an affidavit from the former solicitor to test the factual basis of those grounds. The solicitor was slow to respond, did not provide a formal affidavit despite the applicant having waived client legal privilege, and delivered only a brief email on the eve of the hearing. The Crown ultimately conceded that a miscarriage of justice had occurred.

  • Whether the sentencing solicitor's failure to obtain and tender evidence of the applicant's assistance to authorities and mental illness constituted incompetence causing a miscarriage of justice
  • Whether the Court of Criminal Appeal should remit the matter to the District Court for resentencing, or deal with the new evidence and re-sentence on appeal
  • What obligations a former legal practitioner bears when a ground of incompetence is raised on appeal and the client has waived privilege
  • What discount, if any, should apply for assistance to authorities (addressed in a confidential annexure)

Decision

The Court found that two matters of real substance, namely the applicant's assistance to authorities and his mental illness at the time of the offences, had been communicated to the solicitor but were never placed before the sentencing judge. The sentencing judge therefore proceeded on incomplete information through no fault of his own. The Crown's concession that this constituted a miscarriage of justice was accepted, and it was unnecessary for the Court to analyse the solicitor's individual conduct in detail.

McCallum JA confirmed the applicable principle from Tsiakas v R and Pym v R: where evidence of real substance was not placed before the sentencing court as a result of a legal representative's incompetence, the sentencing process miscarries and appellate intervention is warranted. This is not inconsistent with the general principle that an accused is ordinarily bound by how their case is conducted. The ultimate question remains whether the process was fair.

On the question of remitter, the Court decided against sending the matter back to the District Court. The applicant's non-parole period was imminent, and the new evidence was capable of assessment by the Court of Criminal Appeal directly. The Court adopted the original sentencing judge's findings on objective seriousness and special circumstances, then applied a combined discount of 35% (the basis of which is recorded in a confidential annexure, presumably because it reflects the extent of the assistance to authorities).

McCallum JA also addressed in some detail the obligations of the former solicitor. The judgment records that a lawyer whose conduct is the subject of a ground of incompetence has an overriding duty to assist the court. Where the client has waived privilege, there is no proper basis to withhold an affidavit or to delay in providing relevant information. Any personal discomfort at having conduct scrutinised must yield to the interests of justice.

Orders Made

  • Leave to appeal granted against the aggregate sentence imposed at Campbelltown District Court on 6 December 2019
  • Appeal allowed; the aggregate sentence quashed
  • New aggregate sentence of 3 years and 8 months imposed, comprising a non-parole period of 1 year and 10 months commencing 18 December 2018 and expiring 17 October 2020, with a balance of term of 1 year and 10 months expiring 17 August 2022
  • Indicative sentences under s 53A(2)(b): 1 year and 11 months for the offence of 15 December 2018; 2 years and 7 months for the offence of 17 December 2018
  • The applicant eligible for release on parole immediately (orders made 4 December 2020, reasons delivered 10 December 2020)

Key Takeaways

  • A miscarriage of justice in sentencing can arise from a legal representative's failure to place evidence of real substance before the sentencing court, even where the sentencing judge made no error. The principle, confirmed here following Tsiakas v R and Pym v R, focuses on the fairness of the process rather than fault in the judicial officer.

  • Where a ground of incompetence is raised on appeal, the former solicitor holds an overriding duty to assist the court. A waiver of client legal privilege by the client removes any privilege-based obstacle to providing an affidavit, and reluctance or delay in responding is inconsistent with that duty.

  • The Court of Criminal Appeal confirmed that it is appropriate, and arguably preferable, for the prosecution to seek and tender the former solicitor's account in incompetence grounds. An account given solely by the applicant's new representatives may be incomplete in either direction, potentially prejudicing either the applicant or the administration of justice.

  • Unmedicated mental illness at the time of offending is a mitigating factor of real substance that must be placed before the sentencing court. Its omission, where it was known to the solicitor, contributed directly to the miscarriage found here.

  • In circumstances where a non-parole period was imminent, the Court of Criminal Appeal declined to remit the matter for resentencing, instead receiving the fresh evidence and re-sentencing directly to avoid further delay in determining the applicant's liberty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 53A (aggregate sentences; mitigating factors)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Nudd v R (2006) 225 ALR 161; [2006] HCA 9
- Pym v R [2014] NSWCCA 182
- Rae v R [2019] NSWCCA 284
- Tsiakas v R [2015] NSWCCA 187