Amante v R [2020] NSWCCA 34
Amante v R [2020] NSWCCA 34 · Read the judgment on AustLII
Catchwords: Photographs – findings on sentence – ambiguous or incomplete Agreed Facts
The Court of Criminal Appeal (‘CCA’) has found that a court is not taking ‘judicial notice’ of a fact where what it is doing is combining pieces of evidence from which a particular finding might be inferred – like combining a photo with Agreed Facts to make a finding that the structural integrity of a building might have been affected. But there are some limitations on the findings that can be made on the basis of only a photograph. And, as commonly happens, where the Agreed Facts are not entirely to the satisfaction of the sentencing judge, their duty is to make those findings that they can, and set aside the findings that are not proved to the relevant standard.
The applicant and the victim had been in a turbulent relationship. They had lived together briefly, but by the time of the offending there was an ADVO in place preventing him from going within 200 metres of her unit. He went there anyway. The victim, her brother, and the applicant got into an argument during which, amongst other things, he said ‘[i]f the police come, they won’t be able to come through, they would have a murder scene.’ He returned the next day, sending text messages to the victim and her brother (neither of whom were at the scene) threatening to set fire to the unit, shortly after which he was seen walking up the steps towards her unit, and back down again five minutes later. The Agreed Facts stated that he started a fire in the victim’s unit without specifying how he’s started it; the sentencing judge expressed surprise and disappointment that the parties had not chosen to include any evidence about how the fire was started. The applicant said that he had used nail polish remover to light a fire on the bed, lay down on the floor intending to kill himself, but panicked at the amount of smoke and ran out of the building. This was inconsistent with the Agreed Facts (it seems on the basis that he was seen walking away, rather than running). There was also some dispute about how many lives were placed at risk by the fire. The fire entered the roof void, and there were some photos of this fact; this caused the sentencing judge to ‘…take judicial notice that that posed a serious structural risk to the integrity of the building’. The judge was also dissatisfied about the lack of detail in the facts about how much the damage cost to repair, or for how long the unit – which was public housing – was uninhabitable. Having pleaded guilty in the Local Court, the applicant was sentenced to 3 years and 9 months, with a non-parole period of 2 years. He appealed asserting, first, that the sentencing judge erred by taking ‘judicial notice’ in relation to the structural integrity issue; and secondly on a finding about the applicant’s mental health. Only the first ground is discussed in this summary.
The CCA (N Adams J; Payne JA agreeing, Beech-Jones J agreeing with additional comments) dismissed the appeal. In the principal judgment, N Adams J commenced by disclaiming any attempt to resolve a looming issue relating to errors of facts identified on appeals. Broadly, the question is whether the test on an appeal is whether a fact was ‘open’ to a sentencing judge, or whether (as some recent judgments have held), an appeal court can proceed on the basis of identifying a factual mistake and reconsider the sentence. Here her Honour found it unnecessary to decide, because on either version of the law the ground failed (she proceeded on the basis that the appropriate test was whether it was ‘open’ to the sentencing judge to make the finding).
The sentencing judge mis-described what he was doing when he said he was taking ‘judicial notice’ of the fact that the fire entering the roof void caused a serious structural risk to the building (at [65]). Courts are permitted to take notice of facts that ‘every ordinary person’ would know, and there is no exhaustive list of what is included (at [66]-[67]), although some examples are given at [67] and [69], including that courts are allowed to acknowledge the existence of retractable seats without evidence. Similarly, photos cannot be used as a sole method by which a primary fact is proved, where that fact is not revealed on the fact of the photograph; for example the distance, height or the location of shadows (at [59]-[60]). But here, what actually happened was that the sentencing judge combined information from the Agreed Facts with photos which were tendered (at [61]). That combination was a sufficient basis to draw the inference that the sentencing judge had made (at [70]).
It was abundantly clear that the sentencing judge was dissatisfied with the terms of the Agreed Facts. There is no doubt that courts are sometimes frustrated by the terms of Agreed Facts, but N Adams J reiterated comments she had made in an earlier judgment to the effect that sometimes it is just not possible to ascertain everything relevant to the sentencing exercise. When that happens, the sentencing judge must proceed on the basis of what is proved to the relevant standard, and leave to one side that which is not (at [63], adopting Tran v R [2018] NSWCCA 220 at [173]).