Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236

Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236 · Read the judgment on AustLII

Catchwords: Sentencing – procedural fairness – affidavits of assistance – Doogie Howser pseudonym

This decision of the Court of Criminal Appeal deals with two important issues: when do you have to challenge a sentencing judge on a favourable position they expressed to your opponent? And can adverse use be made of affidavits of assistance if they are not induced? The answers are, respectively: When your opponent challenges them, and not usually.

The applicant pleaded guilty to a range of firearms offences: chiefly, he had given two pistols to a man known as ‘Peter’ (who did not have a firearms licence) for a total of $20,000. The applicant was sentenced in the District Court to an aggregate sentence of 5 years with a non-parole period of 3 years and 6 months. On appeal he raised two grounds. First, that he was denied procedural fairness by a finding about the risk of reoffending, and secondly that material tendered in his favour about his assistance to authorities had been used against him.

In relation to the first ground: during submissions made by the ODPP solicitor, the sentencing judge made a comment that his impression was that the risk of reoffending was ‘minimal if at all’. The Crown disagreed and made some submissions supporting their opposition. But in submissions in reply, the offender’s representative did not return to that specific topic. In spite of his earlier comment, the sentencing judge eventually went on to find that the prospects of rehabilitation were ‘poor to moderate’ and the risk of reoffending ‘moderate’. The applicant submitted on appeal that he had been denied procedural fairness, in that the sentencing judge had stated his impression of minimal risk of reoffending, and had not subsequently sought submissions from the offender on that topic.

The Court (N Adams J; Gleeson JA and Harrison J agreeing) held that there had not been a denial of procedural fairness in the way described, but did go on to hold that there was an error. For an applicant to establish a denial of procedural fairness, they need to identify the finding from which the judge departed without notice to the applicant, which posed a difficulty in this case given there was no unambiguous statement by the judge that he would make such a finding (at [40]). If the sentencing judge had clearly said that he proposed to find that the applicant’s risk of reoffending was ‘minimal if at all’, and the Crown either agreed or said nothing in response, then the offender would have been denied procedural fairness (at [36]). Although here the silence of the offender’s representative on this topic suggested that she may have been under the impression it was unnecessary for her to reply, this did not mean that she was not provided with an opportunity to do so (at [41]). It does not place too heavy a burden on the representative of an offender that when a sentencing judge expresses a favourable view to the Crown, but the Crown then seeks to dissuade them from that view, that the offender’s representative should then clarify the position during submissions in reply (at [42]). That said, the adverse finding made was not urged by the Crown and there was no basis for it in the evidence. In those circumstances the judge was required to raise the issue with the offender’s counsel and did not, causing the proceedings to miscarry (at [44]).

In relation to the second ground raised (in relation to assistance): During his evidence on sentence, the offender was asked questions by the sentencing judge, in response to which the offender conceded that he knew that the man to whom he had sold the firearms was criminally active. The Agreed Facts did not mention this fact and left quite a different impression; the sentencing judge had become aware of it because the Crown had tendered an affidavit of assistance which disclosed it. This raised the question of the use a sentencing judge may make of a material in a confidential affidavit in finding relevant facts. The offender’s statements in this case were not induced (that is, he was not provided with an undertaking that the material in the statements would not be used against him). The main authorities (summarised at [54]-[56]) all dealt with the scenario where the offender’s statements had been induced. Prominent amongst them is the principle that a statement made by way of (induced) assistance cannot normally be used against the offender on sentence. But the question was posed (at [57]): to what extent to these principles apply when an offender’s statement was not induced, as in the present case? The answer is that, although the principles derived in earlier authorities arose in the context of induced statements, the same caution should be exercised when any letter of assistance is tendered for the sole purpose of sentencing discount. The basis of the tender should be agreed and clearly stated by the parties, and the question of whether there should be restriction on its use identified (at [61]). These sentencing proceedings miscarried because of the way in which the confidential affidavit was used by the sentencing judge to cross examine the offender (at [62]).