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Court of Criminal Appeal 17 August 2022

Saunders v R

[2022] NSWCCA 174

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME APPEAL AGAINST SENTENCE PROCEDURAL FAIRNESS LIMITED PRIOR CRIMINAL HISTORY DISCRETIONARY MATTER FOR THE JUDGE

Citation: Saunders v R [2022] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 17 August 2022
Judges: Beech-Jones CJ at CL; Price J; Lonergan J

Background

The applicant pleaded guilty on the first day of trial to four offences arising from a domestic violence incident on 4 May 2017. The offences included intentionally choking a former partner and rendering her unconscious (twice), assault occasioning actual bodily harm, and two counts of intimidation with intent to cause fear of physical harm. Two further offences were taken into account on a Form 1.

At sentencing in the District Court, Bright DCJ imposed an aggregate term of three years' imprisonment with a non-parole period of 18 months for the principal counts, together with community corrections orders for the intimidation counts. Her Honour allowed a five percent discount for the late guilty pleas and found special circumstances.

The applicant sought leave to appeal on the sole ground that the sentencing judge denied him procedural fairness by finding that his criminal history disentitled him to leniency. The applicant's prior record was limited: an assault fine in 1991, two firearms offences in 2005 (one dismissed under s 10), and a further assault fine in 2007.

  • Whether the sentencing judge denied the applicant procedural fairness by relying on his criminal history to reduce the leniency available to him, where this had not been raised orally by either party or by the judge during the sentencing hearing.
  • Whether the applicant had a legitimate expectation that the written submissions (which addressed leniency in connection with his limited criminal history) would be accepted.
  • Whether the sentencing judge's finding was accurately characterised as a finding that the applicant's criminal history disentitled him to "leniency" altogether, rather than to the full leniency available to a person of good character.

Decision

Price J, with whom Lonergan J agreed, identified a threshold problem with the ground of appeal: the finding it described was not the finding actually made. The sentencing judge did not find that the applicant's criminal history disentitled him to any leniency. Rather, her Honour found that it disentitled him to the leniency "that would otherwise be available to a person of good character." Her Honour then extended leniency to the applicant on account of his limited criminal history, accepted that he was otherwise of good character, and made favourable findings about his prospects of rehabilitation and likelihood of reoffending.

On the procedural fairness argument, Price J noted that both parties had addressed the relevance of the applicant's criminal record in their written submissions. The Crown accepted the record was not significant enough to deny "any leniency." The applicant's own submissions sought "some leniency" on the basis of his limited history. The question of how much leniency to extend was therefore squarely before the court on the material tendered. No fresh issue was raised by the judge that had not been the subject of submissions.

Beech-Jones CJ at CL agreed that the procedural fairness complaint was untenable, observing that the judge had not in fact denied the applicant any leniency. The distinction between denying leniency entirely and declining to extend the full leniency available to a person of good character was central to dismissing the appeal. The discretion to allow leniency is not all-or-nothing; it admits of degrees, and the judge exercised it accordingly.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's discretion to allow leniency based on criminal history is a matter of degree, not a binary all-or-nothing exercise.
  • No procedural fairness denial arises where a sentencing judge's approach to a mitigating factor falls within the range of outcomes contemplated by the written submissions of both parties.
  • A ground of appeal grounded on a specific "finding" will fail if the court did not in fact make that finding: the precise terms of the finding matter, and an appeal cannot be built on a mischaracterisation of the judgment below.
  • Where both parties' written submissions address a factual matter at sentence, the sentencing court is not required to separately raise the issue orally before acting on it; a legitimate expectation arising from written submissions does not compel a particular outcome.
  • In dismissing the appeal, the Court reaffirmed that accepting a person is "otherwise of good character" and extending some leniency for a limited criminal history are not inconsistent with declining to extend the full leniency available to a person with no prior record.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 37(1), 59(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e)

Cases:
- Brown v R [2020] NSWCCA 132
- Mustafa v R [2021] NSWCCA 164
- Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Weir v Regina [2011] NSWCCA 123
- R v Saunders [2021] NSWDC 530 (the decision under appeal)