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Court of Criminal Appeal 4 June 2021

Fahmy v R

[2021] NSWCCA 112

Public order & justice offences
SENTENCING TIME WAS CONSIDERED BY SENTENCING JUDGE BUGMY TENDER OF EVIDENCE REJECTED LEAVE REFUSED

Citation: Fahmy v R [2021] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 4 June 2021
Judges: Garling J, Beech-Jones J (principal judgment), N Adams J

Background

The applicant was convicted after a judge-alone trial of doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The offence involved altering a bail variation form at a court registry to make it appear that police supported the cancellation of all reporting conditions, when in fact they did not. He was sentenced by Whitford DCJ in August 2019 to a non-parole period of 1 year and 3 months, backdated to May 2018, with a balance of term of 9 months.

By the time the appeal was brought, the sentence imposed by Whitford DCJ had already expired. The applicant was by then serving a separate sentence for armed robbery imposed by Weinstein SC in February 2021, with a non-parole period backdated to July 2019. The applicant sought leave to appeal the earlier (expired) sentence out of time, aiming to achieve a variation that would flow through and bring forward the commencement date of the armed robbery sentence, thereby securing his earlier release.

The application raised two main grounds: first, that Whitford DCJ failed to properly account for time spent in custody on other charges that were later withdrawn; and second, that his Honour erred by not applying the principles from Bugmy v R (2013) 249 CLR 571 concerning the effect of a deprived or dysfunctional background on moral culpability. To support the second ground, the applicant sought to tender fresh evidence about an allegedly traumatic family background.

  • Whether the extension of time to seek leave to appeal should be granted, given the sentence had already expired.
  • Whether Whitford DCJ failed to properly account for the 54 days the applicant spent in custody on other charges that were later withdrawn.
  • Whether the sentencing judge erred by failing to apply the Bugmy principles regarding a deprived upbringing and reduced moral culpability.
  • Whether the Court should receive fresh evidence on appeal where that evidence directly contradicted the case the applicant ran before the sentencing judge.

Decision

On the custody time ground, the Court found no error. The sentencing judge had expressly addressed the time spent in custody, including the 54-day period on the other charges. His Honour's reasons reflected careful consideration of the total time the applicant had spent in custody, and no error was demonstrated in that exercise.

On the Bugmy ground, the applicant sought to tender fresh evidence, including statements from family members and a psychologist, depicting a dysfunctional and traumatic upbringing. The Court refused to receive that evidence. The reason was direct: before Whitford DCJ, the applicant's own legal representatives had presented the completely opposite case, portraying his family as loving, supportive, and a positive factor in his rehabilitation prospects. Detailed references, letters from his parents and church leaders, and a psychiatric report all described him as coming from a good, supportive family.

Beech-Jones J held that while an appellate court may receive fresh or new evidence that supplements the case run below, brings forward something previously unknown, or corrects an oversight, this situation was categorically different. The applicant was seeking to mount a case diametrically opposed to that presented at first instance, without demonstrating any incompetence on the part of his legal representatives. To allow such evidence, the Court reasoned, would be inconsistent with the nature of the appellate function and would not occasion any miscarriage of justice if refused.

Because the Bugmy ground depended entirely on the fresh evidence, and because no such evidence had been before Whitford DCJ, no error on his Honour's part could be established. Leave to raise that ground was also refused. The Court refused both the extension of time and leave to appeal.

Orders Made

  • Application for extension of time refused.
  • Application for leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that fresh evidence will not be received on a sentence appeal where it is tendered to mount a case that is the complete opposite of the case run by the applicant's own legal representatives before the sentencing judge, and no incompetence or similar failing on their part is demonstrated.

  • Applying Bugmy principles on appeal requires that there be a foundation for those principles in the evidence actually before the sentencing court; where no such evidence was tendered below, no error can be attributed to the sentencing judge for failing to apply them.

  • An application for leave to appeal against an expired sentence may still be entertained where the outcome could have a consequential effect on a current sentence, but the ordinary appellate principles, including the requirement to identify error, remain fully applicable.

  • Sufficient consideration of time spent in custody on other charges was demonstrated where the sentencing judge expressly addressed that period in the sentencing judgment, including time spent bail refused on charges that were ultimately withdrawn.

  • In dismissing the application, the Court reinforced that the appellate function does not extend to permitting a party to run an entirely new and inconsistent factual case simply because a different forensic approach might have produced a more favourable outcome at first instance.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Crimes Act 1900 (NSW), ss 97(1), 319
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Evidence Act 1995 (NSW)

Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- House v R (1936) 55 CLR 401
- R v Birks (1990) 19 NSWLR 677
- Refaieh v R (2019) 272 A Crim R 245; [2018] NSWCCA 72
- Korovou v R [2021] NSWCCA 28
- DAO (No 3) v R [2021] NSWCCA 103
- Garland v R [2009] NSWCCA 217
- Puan v R [2009] NSWCCA 194
- Khoury v R [2011] NSWCCA 118
- R v Fordham (1997) 98 A Crim R 359
- Raymond John Munro v Regina [2006] NSWCCA 350