New South Wales Court of Criminal Appeal CITATION: Raymond John Munro v Regina [2006] NSWCCA 350 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 30 October 2006 JUDGMENT DATE: 8 November 2006 JUDGMENT OF: Beazley JA at 1; Sully J at 29; Hislop J at 30 DECISION: 1. Grant leave to appeal; 2. Appeal allowed; 3. Sentence quashed; 4. Remit the matter to the District Court for re-sentence. CATCHWORDS: CRIMINAL LAW – sentencing – offence of infliction of grievous bodily harm – whether sentencing process miscarried due to incompetent representation by counsel - PRACTICE AND PROCEDURE – offender represented by counsel instructed by Aboriginal Legal Service – trial judge noted inadequacy of evidence – evidence adduced to minimise objective criminality was in hearsay form – evidence in hearsay form of little evidentiary value – whether incompetency of counsel or tactical decision – whether miscarriage of justice - SENTENCING – subjective circumstances of offender – Aboriginal offender – significantly disadvantaged background – evidence of background and of problems with alcohol in hearsay form – whether miscarriage of justice LEGISLATION CITED: Crimes Act (NSW) 1900 s 33, 59 Criminal Appeal Act (NSW) 1912 s 12(2) Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 R v Elfar [2003] NSWCCA 358 R v Fernando (1992) 76 A Crim R 58 CASES CITED: R v LBK [2001] NSWCCA 248 R v McGourty [2002] NSWCCA 335 R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 PARTIES: Raymond John Munro (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2006/1708 COUNSEL: P Hamill SC; M P King (Appellant) J Dwyer (Crown) SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0160 LOWER COURT JUDICIAL OFFICER: Finnane DCJ LOWER COURT DATE OF DECISION: 22 April 2005 - 1 - IN THE COURT OF CRIMINAL APPEAL CCA 2006/1708 BEAZLEY JA SULLY J HISLOP J 8 November 2006 RAYMOND JOHN MUNRO v REGINA Judgment 1 BEAZLEY JA: Raymond John Munro (to whom I shall hereinafter refer by his surname) pleaded guilty to one count of 'maliciously inflict grievous bodily harm with intent to cause grievous bodily harm' contrary to s 33 of the Crimes Act (NSW) 1900 (the Crimes Act). The maximum penalty for the offence is imprisonment for 25 years. Munro came to be sentenced by his Honour Judge Finnane in the District Court of New South Wales on 22 April 2005. At the time of sentencing, his Honour was asked to take into account, pursuant to a Form 1 schedule, an offence of 'assault occasioning actual bodily harm' contrary to s 59 of the Crimes Act. The maximum penalty for this latter offence is imprisonment for five years. Both offences arose from the same incident committed on 9 March 2003. 2 His Honour sentenced Munro to a non-parole period of five years six commencing on 22 April 2005 and expiring on 21 October 2010 and a balance of term commencing 22 October 2010 and expiring 1 July 2015. This constituted a total sentence of ten years two months and ten days. 3 A statement of agreed facts was tendered on the sentence hearing. Briefly, those agreed facts revealed that on 8 March 2003, Munro was at a nightclub, having arrived there at about 1am after having previously attended a party. Munro had consumed alcohol, both at the party and at the nightclub. An incident occurred at the nightclub in which Munro punched Jay Tobin, who responded by punching Munro and each of them engaged in a scuffle. Munro was then escorted from the premises by security personnel. Shortly after Munro was ejected, Tobin and Michael Smit left the nightclub and were walking to catch a taxi. At this point, Smit heard the offender yelling and he decided to go and talk to the offender. A verbal dispute broke out between Munro and Smit and Munro hit Smit on his head with such force that Smit fell backwards onto the ground. He remained motionless. Whilst on the ground, Munro kicked Smit to the head and then stomped on his head twice. Smit was seriously injured and was taken to Manly hospital in a critical condition. His injuries included a basal skull fracture with acute extradural haemorrhage on the right with mass effect, fractures of the medial walls and floor of the orbits, fractures of the frontal and ethmoidal sinuses, a fracture of the right temporal bone extending in to the facial nerve canal, dislocation of the right middle ear ossicles and a subdural haematoma. He also suffered damage to the cartilage in his right knee. 4 He has ongoing serious disabilities, including a significant hearing loss to his right ear and partial paralysis to the right side of his face. His memory and concentration have been adversely affected and he suffers depression, believed to have been caused by scarring to the brain. 5 On the sentence hearing, Munro was represented by counsel, instructed by the Aboriginal Legal Service. The grandmother of Munro's de facto partner, Mrs Lever, was called to give oral evidence and a report from a psychologist, Dr Lennings, was tendered. In addition, a number of personal references were tendered, together with a statement of attainment. A pre-sentence report was also available for his Honour. 6 Dr Lennings took a history from Munro of problems with short-temperedness, but a denial of any pattern of heavy drinking. Munro did not give a history to Dr Lennings of exposure to violence, although his background was described as being "significantly disadvantaged … because of his Aboriginality". This disadvantage was seen to arise from the fact that his parents were activists in the Black Power movement in the 1970s and his family was thereby subject to harassment by the security services. A similar picture emerged from the probation and parole report. Munro informed the probation and parole officer, Nicole Cleary, that he did not consider himself to have an alcohol problem, but admitted to having a problem with anger. He did, however, give a history to Ms Cleary of violence between his parents and other relevant adults. 7 In her evidence, Mrs Lever stated that she had never witnessed any domestic violence between Munro and her granddaughter, Tamika, and described him as being a social drinker only. Mrs Lever also referred to the difficulties that Munro experienced by being a child in a black activist family. 8 During the course of the sentencing submissions, Finnane DCJ expressed his concern that he only had available to him the hearsay evidence of Dr Lennings and Ms Cleary, the probation officer. His Honour said in an exchange with counsel that: "Your client has told me precisely nothing, so I have to treat both reports as possibly true, but I cannot be totally certain about the correctness of things that are put to Dr Lennings or put to the Probation officer. It's just a whole lot of hearsay assertions." Counsel responded: "But your Honour hearsay is accepted, evidence may be accepted on hearsay in sentencing proceedings unless there is a specific direction given, I think it's under s 4 or 3 of the Evidence Act." His Honour said: "Yes, I know that but the Court of Criminal Appeal has said on more than one occasion that trial judges have to be very cautious about accepting statements made to psychologists and Probation officers which are not verified by any evidence from the persons who make them. Now that's just a commonsense proposition but they've said it, so I can't ignore what they say, I must take that into account." 9 His Honour drew specific attention to the issue as to whether Munro had a drinking problem and observed: "The question I ask myself is this, if he doesn't have a drinking problem … he must have an incredible violence problem." This discussion continued for some time, his Honour indicating that the evidence relating to the incident in the nightclub was indicative of a person who drank a lot. His Honour referred to Munro's behaviour in the nightclub as being " abnormal ". 10 In his remarks on sentence, his Honour had specific regard to whether alcohol was a factor in the commission of the offence, either because of the amount of alcohol consumed on the night, or because of a more general alcohol problem. His Honour observed that the evidence in relation to alcohol consumption was unsatisfactory. His Honour indicated that, to be able to make a finding in relation to the amount of alcohol consumed, he would need evidence either from Munro himself or his friends who had observed him. His Honour considered that Munro's reaction in "getting angry over a trivial event" as he did when he got into the argument in the nightclub, was consistent with him having been affected by alcohol, but was also consistent with a person "easily roused to anger and one who acts violently when angry". His Honour concluded that, in the absence of satisfactory evidence about alcohol consumption, Munro was "an angry man who will irrationally attack complete strangers". 11 His Honour likewise was unable to draw any conclusion as to Munro's background. He noted that there was no direct evidence of the violence between Munro's parents of which he had given a history to the probation and parole officer. His Honour therefore expressed his reluctance to "draw conclusions that he grew up in a violent household and amidst a violent community without some direct evidence to support it". 12 His Honour then separately dealt with the psychological evidence. His Honour observed that, like the probation report, Dr Lennings' report contained hearsay material which his Honour considered ought to be treated with caution because it was not supported by evidence. He observed, however, that some of the material in Dr Lennings' report was consistent with other material and was "probably based on fact". 13 Munro now appeals against his sentence and in doing so, seeks to adduce what was referred to in submissions as "fresh evidence" relating to: his upbringing that involved significant violence between his parents and other relatives; to the fact that he himself had been subjected to serious violence as a teenager (not at the hands of his parents) and that he had an alcohol problem. It must be said immediately, that none of this material is "fresh evidence". It was material that at all times was available to be put before the trial judge, but was not. Accordingly, the basis for the admission of this evidence as fresh evidence has not been made out. 14 It was submitted alternatively that the sentencing process had miscarried because counsel then appearing for him acted incompetently in all the circumstances. Counsel affirmed an affidavit on 17 August 2006 in which he gave evidence that he had been instructed by the Aboriginal Legal Service to appear for Munro and had also known the family for nearly 20 years. He said that, for the purposes of preparing his affidavit, he had been shown a bundle of ambulance and hospital records relating to the appellant, a draft affidavit of Munro's mother, Jenny Munro, and a statement of Scott Brunskill. Counsel then said: "6. In relation to the medical and ambulance reports I say that I have never previously seen those documents. My instructing solicitors did not brief me with those reports. I was aware that the Aboriginal Legal Service was supposed to have some reports but after numerous enquiries I was informed that the reports could not be located. The applicant and his family did tell me that there had been some instances of assault but I was never informed in detail as to the nature or severity of those incidents. I was certainly never made aware of the number of occurrences reflected in those documents. 7. If I had been made aware of this material or if it had been briefed to me, I believe that I would have tendered it on sentence. 8. I have known the Munro family for nearly twenty years through my association with the Aboriginal Legal Service and even prior to that association. As such, in dealing with the case some of my decisions were influenced by that association and knowledge. I refer to the affidavit of Jenny Ann Munro and say that while I was aware of some violence in the applicant's home and community I was not aware of the extent of that violence. With the benefit of hindsight I say that I should have led direct evidence of the violence in the home particularly after the Judge made comments (recorded in the transcript of 21 March 2005 at pp 11-12) suggesting he would be 'cautious' about accepting the hearsay statements of the applicant. 9. In relation to the issue of the applicant's intoxication at the time of the offence, it was my view that those parts of the facts that referred to him having consumed alcohol at the party prior to going to the club and the subsequent further consumption of alcohol, combined with the circumstances and timing of the incident and subsequent counselling sought by Mr Munro after the incident, was sufficient to establish that alcohol played a role in the events of the evening. Further, in discussion between His Honour and myself (see transcript of 4 February 2005 P12 L43-P13 L54) it seemed that this situation had been accepted by the Judge. 10. I have been referred to the statement by Scott Damien Brunskill which was part of the brief of evidence. Mr Brunskill, who was with the applicant throughout the evening, stated that "I think Ray was quite pissed. I don't know how much he had drunk, but from the way he was carrying on he seemed quite pissed." With the benefit of hindsight I think I should have tendered this statement or ensured that this part of it was included in the agreed facts." 15 This evidence is relied upon by Mr Hamill, senior counsel for Munro on the appeal, as demonstrating that counsel at the sentence hearing had failed to properly turn his mind to the proper representation of Munro's case. In particular, it was submitted that it is apparent from counsel's affidavit that he failed to make adequate enquiries of matters that were relevant to the sentencing process, in particular, the extent of the violence in Munro's upbringing and his considerable problem with alcohol, together with the extent to which alcohol played a role in the events of the evening. 16 There ought to be added to that submission the manner in which counsel conducted himself during the course of the sentence hearing. I have already referred to the comments of his Honour during the sentence hearing, in which his Honour expressed concern on more than one occasion that the evidence before him was of a hearsay nature and that the Court of Criminal Appeal had pointed out that trial judges had to be cautious about accepting statements made to psychologists and probation officers that are not verified by the persons who make them. 17 His Honour's understanding of the law was correct. In R v Elfar [2003] NSWCCA 358, Whealy J (Ipp JA and Davidson AJA agreeing) referred to the acceptance without reservation by the trial judge in that case, of the accounts recorded in various medical reports and other documents tendered at the sentence hearing, notwithstanding that the respondent did not give direct evidence of those matters. The Crown had referred the Court in R v Elfar to the decisions of this Court in R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 and R v McGourty [2002] NSWCCA 335. His Honour quoted from the statement of Wood CJ at CL in McGourty as follows: "24 So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to a psychologist. Recently this Court has criticised the practice of placing material of this kind before sentencing judges, in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of a record: Regina v Qutami [2001] NSWCCA 353, at paras 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ). 25 I whole heartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested." 18 Whealy J concluded at [25]: "The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports – ( R v Palu per Howie J with whom Levine J and Heydon J agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so." 19 In R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 Howie J, with whom Levine and Hidden JJ agreed, said at [41]: "A probation officer preparing a presentence report merely questions an offender about the offence because it may reveal some matter about the offender's attitude which is relevant to the primary purpose of the report, that is to indicate matters which might be addressed by the service in aiding in the rehabilitation of the offender and to advise on available sentencing options as required by the provisions of the Crimes (Sentencing Procedure) Act … The officer does not offer an opinion as to the reliability of what is said. Such comments have little evidentiary value if not supported by other material." 20 Unfortunately, Munro's counsel was dismissive of his Honour's attempts to draw his attention to the need for there to be proper evidence, such as to indicate he was not giving sufficient attention to what was required to ensure his client received adequate representation. If he was not dismissive of it, he lacked an appreciation of the principles to which Whealy J referred and thus he failed to appreciate the depth of his Honour's concern. 21 These comments are matters of severe criticism of counsel in this matter. It has not been suggested that this is the normal standard of care that this counsel applies to his matters. As I understand it, he is experienced counsel and his omissions on this occasion have been put forward as probably stemming from the closeness of his relationship with the Munro family, which may have clouded his objectivity and therefore the normal astuteness which is required of counsel in appearing in any matter, and in particular, in appearing for a person charged with a serious criminal offence. This was not disputed by the Crown. I should also add that it appears from counsel's affidavit that the Aboriginal Legal Service was remiss in their briefing of counsel. 22 One matter, however, with which the Court ought to be concerned, is whether or not any tactical decision was made by counsel in not calling appropriate evidence, rather than the explanation for his conduct being oversight or omission of a serious nature. Counsel was not required for cross-examination, so that this possibility, which was one favoured by the Crown, was not tested in an appropriate forensic manner. Having regard to the matters to which Counsel did depose, I have concluded that the omissions at trial were due to a failure by him to have proper regard to the material required for an appropriate proof of matters that were relevant to Munro's sentence. I do not consider that he made a tactical decision. 23 Incompetent representation may be of such a degree that it amounts to a miscarriage of justice such as to require the Court to intervene. In Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, Gleeson CJ pointed out at [9] that "[a]s a general rule, counsel's decision bind the client". His Honour further pointed out, at [10], that "[a] court of criminal appeal is an unsatisfactory forum for assessing the performance of trial counsel". His Honour continued: "To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred." His Honour further observed that a party seeking appellate intervention will often be dissatisfied with counsel's performance at trial. His Honour continued, at [12]: "Inevitably, in some cases, trial counsel will be blamed for failure. Such blame is pointless unless it can be related to a legal rubric of relevance to the jurisdiction being exercised by the court of criminal appeal. The relevant rubric is miscarriage of justice." 24 Nudd's case involved an appeal against conviction. However, there is no difference in principle in the case of an appeal against sentence. Sentencing retains aspects of adversarial litigation. Evidence sought to be adduced on sentence is subject to the same principles of admissibility and weight as in a trial, although parties often do not take objection to evidence in inadmissible form. Nonetheless, the rules remain and the Court that determines the sentence needs an appropriate level of satisfaction as to the evidence on which it is asked to make what is, after all, a most significant decision for the accused person in particular, and for the criminal justice system generally. 25 In the omissions of the type made by counsel here, I have concluded that there has been a miscarriage of justice in this case. Munro has been deprived of the Court's consideration of circumstances relevant to his sentences, including matters that may have involved the application of R v Fernando (1992) 76 A Crim R 58, given Munro's Aboriginal heritage. In those circumstances, I am of the opinion that the sentences should be set aside and that Munro should be re-sentenced on the basis of such material that is relevant to his circumstances and which is properly adduced to the Court. In reaching this conclusion, I do not mean in any way to diminish the seriousness of the crime, nor do I intend to give any indication that Munro must be given a lighter sentence. The sentence imposed must be based upon a proper sentencing discretion, taking into account all relevant evidence: see R v LBK [2001] NSWCCA 248. 26 The question arose during the course of the hearing of the appeal as to whether this Court should embark upon the re-sentencing process or whether the matter should be remitted to the District Court pursuant to s 12(2) of the Criminal Appeal Act (NSW) 1912. Both counsel for Munro and the Crown agreed that the most appropriate course was for the matter to be remitted to the District Court. Further evidence needs to be given and the Crown has indicated that it wishes to test any further evidence called by cross-examination. The Court of Criminal Appeal, although having power to receive further evidence on a re-sentence, is not the most appropriate body to determine disputed factual matters in the sentencing process. 27 I would only add that any re-sentencing should be dealt with expeditiously. 28 In those circumstances, I would propose the following orders: 1. Grant leave to appeal; 2. Appeal allowed; 3. Sentence quashed; 4. Remit the matter to the District Court for re-sentence. 29 SULLY J: I agree with Beazley JA. 30 HISLOP J: I agree with Beazley JA. ********** 10/11/2006 - Omitted name of junior counsel - Paragraph(s) Cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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