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Court of Criminal Appeal 11 March 2020

Amante v R

[2020] NSWCCA 34

Assault & violenceDomestic & family violence

Citation: Amante v R [2020] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 11 March 2020
Judges: Payne JA, Beech-Jones J, N Adams J

Background

The applicant pleaded guilty in the Local Court to intentionally or recklessly damaging a building by fire, charged as a domestic violence offence under s 195(1)(b) of the Crimes Act 1900 (NSW). The offence arose from an incident in January 2018, when the applicant attended his estranged partner's Department of Housing apartment in breach of an apprehended violence order and, apparently under the influence of crystal methamphetamine, set fire to her unit. The fire spread into the roof void, causing significant damage and potential danger to other residents.

The applicant was sentenced in the Parramatta District Court to imprisonment of three years and nine months, with a non-parole period of two years. He sought leave to appeal that sentence on two grounds.

  • Whether the sentencing judge erred by taking judicial notice of the fact that fire entering the roof void "posed a serious structural risk to the integrity of the building," rather than relying on evidence to support that finding.
  • Whether the sentencing judge erred in finding that the applicant's mental health issues were "largely untreated and largely unresolved," including whether this finding denied the applicant procedural fairness.

Decision

Ground 1: Judicial notice and photographic evidence

The Court agreed that the structural risk finding should have been assessed by reference to the actual evidence before the sentencing judge, specifically the agreed facts and photographs tendered at sentencing, rather than by judicial notice. Judicial notice could never properly support a conclusion about the probability of structural damage to a specific building. On the evidence before him, however, the sentencing judge's finding was available and was not shown to be mistaken.

Beech-Jones J used ground 1 as an occasion to examine the standing of Court of Appeal "principles" about photographic evidence in criminal proceedings. His Honour observed that since the enactment of the Evidence Act 1995, courts in this jurisdiction can only enunciate rules about the reception and use of evidence to the extent that those rules reflect a principle or rule of common law or equity, and only where the Evidence Act does not otherwise provide. Several of the prescriptive statements from Court of Appeal decisions, including those gathered in Goode v Angland [2017] NSWCA 311, are of questionable status under that framework. His Honour concluded that the Court of Criminal Appeal has no authority to specify its own rules about the weight to be given to particular categories of evidence, including photographs, by trial courts. The role of this Court is confined to reviewing convictions for unreasonableness and, in sentence appeals, reviewing whether factual findings were mistaken or not open on the evidence.

Ground 2: Mental health and procedural fairness

The Court rejected the complaint that the sentencing judge erred in characterising the applicant's mental health issues as largely untreated and unresolved. The evidence supported that finding, and the applicant's own submission that his conduct was causally related to his mental illness meant he was clearly on notice that the judge would need to address the extent to which his drug problems had been resolved. There was no departure from an unchallenged factual position, and no procedural unfairness arose. The Crown had itself submitted that relapse was likely, and the applicant was cross-examined on that issue.

Orders Made

  • Application for leave to appeal against sentence is granted.
  • The appeal is dismissed.

Key Takeaways

  • Judicial notice cannot support a sentencing finding about the probability of structural damage to a specific building; such findings require evidence.
  • Beech-Jones J expressed the view that many prescriptive Court of Appeal "principles" governing photographic evidence are of uncertain status following the enactment of the Evidence Act 1995, because the Act now governs the reception of evidence and displaces judge-made rules that are not grounded in common law or equity.
  • The Court of Criminal Appeal confirmed it has no authority to direct sentencing judges on the weight to be given to particular categories of evidence, including photographs; the assessment of weight remains, subject to the Evidence Act, a matter for the trier of fact.
  • No procedural unfairness arises from a sentencing finding where the subject matter of that finding was squarely in contest during proceedings and the offender was not taken by surprise.
  • In dismissing the appeal, the Court applied the test from Hordern v R [2019] NSWCCA 138 (whether the finding was "mistaken") alongside the test in R v O'Donoghue (1988) (whether it was "open"), noting ongoing controversy about the precise standard, without resolving that controversy.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 195(1)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12
- Evidence Act 1995 (NSW), ss 4(2)(a), 9(1), 165
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(1)

Cases:
- Goode v Angland [2017] NSWCA 311
- Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72
- Angel v Hawkesbury City Council [2008] NSWCA 130
- Blacktown City Council v Hocking [2008] NSWCA 144
- Schmidt v Schmidt [1969] QWN 3
- Beaton v McDivitt (1985) 13 NSWLR 134
- R v O'Donoghue (1988) 34 A Crim R 397
- Hordern v R [2019] NSWCCA 138
- DL v The Queen [2018] HCA 32
- Rodgers v R [2018] NSWCCA 47
- Brennan v R [2018] NSWCCA 22
- Baroudi v R [2007] NSWCCA 48
- Button v R [2010] NSWCCA 264
- Milsom v R [2014] NSWCCA 142
- Chong v R [2017] NSWCCA 185
- R v Amante [2019] NSWDC 222 (decision below)