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Key decisions

  • Mourtada v R [2021] NSWCCA 211
  • Lai v R [2021] NSWCCA 217
  • Edwards v The Queen [2021] HCA 28

Mourtada v R [2021] NSWCCA 211

Sentencing – Intensive Correction Orders – interpretation

In this decision the Court of Criminal Appeal (‘CCA’) has added yet more commentary to the saga interpreting the legislation providing for the imposition of an Intensive Correction Order (‘ICO’).

The applicant was sentenced for offences relating to importing tobacco in a way that avoided excise and GST. He was sentenced to 14 months and 3 weeks imprisonment with a recognizance release order (the terms of which are a bit hazy in the judgment, and not presently important). He appealed on two grounds relating to asserted error in not imposing an ICO, and one ground asserting disparity between his sentence and that of his co-offenders. This summary only deals with the ICO issue – and then only a limited part of it.

There has been ongoing debate about the correct interpretation of s 66 of the Crimes (Sentencing Procedure) Act, which has played out in these pages as a series of increasingly-convoluted summaries as new decisions interpret older ones. Section 66 provides that the ‘paramount consideration’ when considering an ICO is community safety, but it also requires the court to consider whether community safety is best addressed by way of ICO or full-time custody.

One of the issues discussed by the Court here (consisting of Basten JA, with whom Adamson and Campbell JJ agreed – albeit each with some qualifications in short additional reasons) was a discussion of the decision of R v Fangaloka [2019] NSWCCA 173 (‘Fangaloka’) which has come to be the preferred interpretation of s 66. Basten JA also wrote the judgment in Fangaloka. There, his Honour had observed that on one reading of s 66, ‘unless a favourable opinion is reached’ in the assessment of whether an ICO would be more likely to address the risk of reoffending, ‘an ICO should not be imposed’ (at [63] of Fangaloka). Practitioners may be aware that some judicial officers have taken the impact of that comment by Basten JA to significantly limit the circumstances in which an ICO is available.

According to Basten JA in this decision, his earlier judgment in Fangaloka ‘could have been more clearly expressed’. But the decision in Fangaloka did not include the proposition that a favourable opinion was required before an ICO could be imposed. Instead, a more nuanced approach was adopted, involving the weighing of various considerations required by s 66. The point of s 66, emphasised Basten JA here, was to ensure that the court does not assume that full-time detention is more likely to address the risk of reoffending. A sentencing court is not required to favour an ICO over full-time custody, but is required to have specific regard to community protection and to bear in mind that short sentences are not necessarily effective as a means of deterring further offending (at [25]).

On the other hand, however, there is no basis in s 66 to disregard other sentencing principles, including the need for general deterrence. An ICO involves a significant element of leniency, and if the sentencing judge (or magistrate) determines that a period of full-time custody is required to make sure the offender is adequately punished, there can be no error in taking that sentencing purpose into account (at [26]). If, as the sentencing judge explained, some period of full-time custody was warranted, there was no room for an ICO – although there was, in this case, the opportunity to partially suspend the sentence by way of a recognizance release order (at [28]).

Lai v R [2021] NSWCCA 217

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 in 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).

Edwards v The Queen [2021] HCA 28

Pre-trial disclosure regime – disclosure generally – prosecutor’s duties

In this decision of the High Court, both judgments make comments favouring the provision of all electronic data to defendants (as distinct from merely telling them that the material exists). But it also serves as a reminder that if there is late disclosure and the defendant does not seek to make use of the sanctions provided for in the legislation, he or she will subsequently find it difficult to point to imperfect compliance as causing manifest injustice.

The appellant was convicted of a range of sex offences. On appeal to the High Court, he argued that his trial had miscarried because the prosecutor had failed to give his lawyers, in advance of the trial, a hard drive containing information from his mobile phone (‘the download’ or ‘the Cellebrite download’). The pre-trial disclosure obligations in the Criminal Procedure Act (‘the Act’) required the prosecutor to give a copy of, amongst other things, any document that had not otherwise been disclosed to the accused person. The Crown had told the appellant of the existence of the download, but did not serve a copy of it. The appellant’s lawyers only took notice of that fact when they were served with a witness statement on the Friday before trial, and were told that the witness’ details had come from the download. The appellant did not seek any relief from the late service of the statement, such as an adjournment (s 141(3)) or the exclusion of the evidence in the belated statement (s 141(1)). The Court delivered two judgments, both agreeing as to the outcome (which was that there was no miscarriage of justice).

In the judgment of Kiefel CJ, Keane and Gleeson JJ, it was observed that the pre-trial disclosure obligations in the Act are only one of several sources of the prosecutorial duty of disclosure. In addition, there is the question of ‘good prosecutorial practice’. Their Honours considered that it was sufficient to observe here that when a prosecutor is in possession of a Cellebrite download, it would accord with good prosecutorial practice to provide a copy of it to defence (at [23]). No doubt the Crown could have provided a copy of the download cheaply and easily, without waiting for a request from the appellant, and thereby obviated any perception of unfairness. On the other hand, if the appellant gave instructions suggesting inquiries that could have been made by searching his phone, there was no impediment to the appellant calling for the download, because its existence had been clearly identified by the Crown (at [31]).

That said, in summary their Honours considered to be without merit the arguments about how the trial might have gone differently if it had been provided, broadly because even with the benefit of hindsight the appellant could not point to anything that would have affected the cross-examination of the witness (see [28]-[29]). If there was a contravention of the provisions by the late service of the statement, it did not affect the fairness of the trial. Moreover, an adjournment might have been, but was not, sought by the appellant under s 146(3) (at [30]).

Edelman and Steward JJ arrived at the same conclusion by a slightly different route. After setting out a potted history of the pre-trial legislative arrangements in NSW (see [48]ff), their Honours held that in Div 3 of the Act the meaning of ‘disclosure’ is a default requirement of providing something unless the thing has no physical existence (at [57] – emphasis in original).

The prosecution’s disclosure obligation extended to the whole of the download, not only to some small part of it. It isn’t stated explicitly in the judgment, but it appears their Honours considered that this obligation to provide the whole of the digital item also extends to other kinds of electronic data held by the Crown (such as recordings), particularly having regard to the fact that the Crown is not required to search the material, nor to conduct the case for the defence (at [65]-[66]).

The Crown had argued that they had complied with their statutory obligations by informing the accused of the existence of the download, such that they had ‘otherwise … disclosed’ it. However, this submission is contrary to the text, context, and purpose of s 142(1)(i) (at [69]). The mandatory pre-trial ‘disclosure’ required by ss 141 and 142 cannot possibly be understood as requiring anything less than physical provision of the relevant documents (at [70]). If it were otherwise, the prosecution would be obliged to inform an accused of the existence of a large database repository of information, but not obliged to provide any of that information to the defence prior to trial. The prosecution are not obliged to interrogate any such database in order to determine whether any items in it are relevant to the defence case, so the Crown’s submission would mean that, the larger the field of potential disclosure, the more uncertainty would exist, and the greater the potential for injustice for an accused person (at [72]).

The failure to provide a copy of the download was a breach of the duty in s 141(1)(a) of the Act. All that notwithstanding, for reasons to do broadly with the inability of the appellant to identify any practical injustice arising from the failure which was capable of affecting the trial, their Honours still dismissed the appeal (see [74]ff).

Thomas Spohr
is a solicitor, Legal Aid NSW and a member of the Law Society of NSW Criminal Law and Ethics Committees.