Mihelic v R [2019] NSWCCA 2

Mihelic v R [2019] NSWCCA 2 · Read the judgment on AustLII

Catchwords: Sentencing – remorse – procedural fairness – the rule in Browne v Dunn

The CCA has considered circumstances in which it might be an error for a sentencing judge to fail to take sworn evidence of remorse into account – and in the process, seems to have pushed at an open door by saying that a failure by the Crown to cross examine might be used against them.

The applicant was one of three men charged in relation to cocaine and MDMA supply. The applicant supplied a total of about 3.5kg of MDMA and about 550g of cocaine; over the course of a few transactions he supplied an undercover police officer (‘UCO’). However, before the last supply, the applicant had actually tried to get rid of a phone he had been using to communicate with the UCO by email. The UCO brought him back in by getting the applicant’s mobile number and sending him a text, which evidently circumvented what was said to be the applicant’s actions to extricate himself from the drug supply business. The applicant also gave sworn evidence of remorse for his conduct and the effect of drugs on the community. He was not cross examined. The sentencing judgment made no reference to remorse, did not make a comment that the applicant was not a credible witness.

He was sentenced in the District Court to 6 years with a non-parole period of 4 years. He appealed against that sentence upon grounds including that the judge had erred in failing to find that the applicant was remorseful.

The Court (Rothman J, with whom Hoeben CJ at CL and Price J agreed) observed that a sentencing judge is not obliged to accept evidence of remorse, even when given on oath, and even when there is no cross examination (at [69]). But this matter fell into a different category: there was no cross-examination; the applicant had attempted to remove himself from the drug supply environment by disposing of the phone; the judge made no remarks about whether the applicant’s expressions of remorse and contrition were genuine or should be believed; and the applicant indicated that he had been free of drugs in gaol, giving a rational basis for his remorse and desire to be rehabilitated (at [72]). Even though the rules of evidence do not apply to a sentence [unless there is an application by a party], it is an essential rule of fairness that if a witness is not telling the truth or is mistaken, it should be the subject of cross-examination, and that rule of fairness applies regardless of the applicability of the rules of evidence (at [73]-[74]). Although the High Court has expressed the view that the rule in Browne v Dunn (1893) 6 R 67 does not apply to the accused in criminal prosecutions, that says nothing about whether it can or should be used against the Crown (at [75]-[76]). Whether or not it is necessary for the Crown to put in issue the genuineness of the remorse, at the very least it should be expected that if a judge is going to reject expressions of remorse which were given in sworn testimony, some comment should be made to that effect (at [77]). In this case, the judge erred by not taking remorse into account (at [78]). That error notwithstanding, the other ground of appeal had no merit, and no lesser sentence was warranted in law, so the appeal was dismissed.