Lai v R [2021] NSWCCA 217

Lai v R [2021] NSWCCA 217 · Read the judgment on AustLII

Catchwords: Sentencing procedure – Unsworn letters tendered on sentence – Strongly discouraged

In this case the CCA has criticised the practice of tendering a letter on sentence, without exposing the offender to cross-examination.

The applicant was sentenced for importing methamphetamine; her sentence, the circumstances, and her appeal grounds are not presently important. In the course of dismissing her appeal, the Court (Bellew J, with whom Bathurst CJ and Adamson J agreed) commented on the fact that she and a co-offender had tendered on sentence a written statement to the judge, each without exposing themselves to cross-examination.

The judgment was very pointed its disapproval of this procedure, observing that it appears to be increasingly adopted (at [79]). It points to earlier authority (now almost 20 years old) to the effect that self-serving, untested comments made by offenders should be treated with considerable caution. Where the Crown has either objected to the material, or has made it clear at the time of tender or during submissions that little or no weight should be given to the material, then the court would be entitled to treat the material as being of little or no weight.

Bellew J observed that in his view there is no utility in adopting the practice of tendering a statement in the absence of sworn evidence in circumstances where the CCA has repeatedly made it abundantly clear that little or no weight should be attached to its contents, and it follows that such a practice is to be ‘strongly discouraged’ (at [80]).

Practically speaking, given the difficulties practitioners face in getting sufficient time to speak to their gaoled clients to prepare a proof in preparation for sentence matters, when compared with the relative ease with which a letter can be produced and faxed (typically on the day of sentence), and the increasing pressure from judicial officers to keep sentencing proceedings efficient, it may be that this practice will not easily disappear. That notwithstanding, practitioners have been warned (again).