Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Milsom v R [2014] NSWCCA 142 Hearing dates: 24/06/2014 Decision date: 28 July 2014 Before: Hoeben CJ at CL at [1] Rothman J at [134] Beech-Jones J at [147] Decision: (1) The sentence imposed by Maiden DCJ on 13 September 2013 is quashed. (2) The sentence proceedings in relation to the applicant are remitted to the District Court for re-hearing by a different judge. (3) The applicant's bail is continued until further order. Catchwords: CRIMINAL LAW - sentence proceedings - plea of guilty - robbery in company while armed with an offensive weapon - irregularities in sentence proceedings - excessive intervention by sentencing judge - whether principles of procedural fairness observed - whether apprehended bias established - necessary for sentence proceedings to be re-heard by another judge. Legislation Cited: Crimes Act 1900 - s98, 556A, Criminal Appeal Act 1912 - s6(3) Cases Cited: Baroudi v Regina [2007] NSWCCA 48 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Branko Balic (No 2) (1994) 75 A Crim R 515 Button v R [2010] NSWCCA 264 CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 House v R [1936] HCA 40; 55 CLR 499 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501 Madden v R [2011] NSWCCA 254 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ng v R [2011] NSWCCA 227 O'Neil-Shaw v R [2010] NSWCCA 42 Parker v DPP (1992) 28 NSWLR 282 R v Foster (1992) 25 NSWLR 732 R v Orchard [2013] NSWCCA 342 R v Tait and Bartley (1979) 46 FLR 386; 24 ALR 473 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 Tran v Regina [2014] NSWCCA 85 Weir v Regina [2011] NSWCCA 123 Texts Cited: Judicial Review of Administrative Action (Thomson Reuters, 4th ed, 2009) Category: Principal judgment Parties: Nigel Thomas Milsom - Applicant Regina - Respondent Crown Representation: Counsel: Mr P Boulten SC - Applicant Mr R Herps - Respondent Crown Solicitors: Catherine Hunter - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2012/122623 Decision under appeal Date of Decision: 2013-09-13 00:00:00 Before: Maiden DCJ File Number(s): 2012/122623; 2012/122824 Judgment 1HOEBEN CJ at CL: Charges and sentence The applicant entered a plea of guilty before the Chief Judge of the District Court on 2 May 2013 to a charge that he did, on 18 April 2012 at Glebe in the State of New South Wales, being armed with an offensive weapon namely an axe, rob Gurmit Singh of certain property, namely a sum of cash, a number of packets of cigarettes and a quantity of telephone credits and at the time of that robbery, did wound the said Gurmit Singh. 2The plea of guilty was accompanied by a three and a half page Statement of Agreed Facts signed by the applicant. His co-accused, James Simon (Simon), also entered a plea on the same charge. The offence was contrary to s98 of the Crimes Act 1900 for which the maximum sentence was imprisonment for 25 years and which had a standard non-parole period of imprisonment for 7 years. 3The sentence proceedings were heard before Maiden DCJ on 28 June, 19 July and 9 September with judgment delivered on 13 September 2013. The applicant was sentenced to a term of imprisonment with a non-parole period of 2 years and 6 months commencing 25 July 2013 and expiring 24 January 2016, with a balance of term of 3 ½ years expiring 24 July 2019. Simon was sentenced to imprisonment with a non-parole period of 3 years and with a balance of term of 3 years. Grounds of Appeal 4The applicant seeks leave to appeal from that sentence on the following grounds: Ground 1 - The sentencing proceedings miscarried because: (i) His Honour cross-examined the applicant about the circumstances of his acquisition of the tomahawk on 28 June 2013. (ii) His Honour asked the Prosecutor to obtain and tender the applicant's Custody Management Records. (iii) His Honour refused bail at the conclusion of proceedings on 28 June 2013 without any application being made by the Prosecutor and without hearing from the applicant. (iv) His Honour dismissed an application that he disqualify himself for apprehended bias without delivering any reasons. (v) His Honour initiated a conversation in the court ante room with counsel which was not recorded in which he indicated that he could not send the applicant to gaol and in which he urged the Prosecutor to tell the DPP not to appeal his decision. (vi) On 19 July 2013 his Honour granted bail without the applicant making any application for bail. (vii) His Honour extensively cross-examined the applicant about his drug related offending on 9 September 2013. (viii) His Honour failed to indicate to the applicant that he was actually contemplating a sentence of about 6 years' duration. Ground 2 - His Honour erred by failing to mitigate penalty as a result of the applicant's mental illness. Ground 3 - His Honour erred in finding that the applicant knew that his offending was going to be a consequence of his bingeing on dangerous substances. Ground 4 - His Honour erred by failing to mitigate penalty as a result of the applicant's intoxication. Ground 5 - His Honour's sentencing discretion miscarried because of his findings that the applicant had engaged in criminal behaviour which occurred over a long period of time and that he was involved in significant drug offending. Ground 6 - The sentence proceedings miscarried because the applicant had been left with a justifiable sense of grievance given the sentence imposed upon his co-offender, James Eric Simon. Ground 7 - The sentence was in all the circumstances manifestly excessive. Agreed Facts 5The following is extracted from the Statement of Agreed Facts signed by the applicant. The applicant was born in 1975 and was aged 36 at the time of the offending. Simon was then aged 26. 6The applicant and Simon spent the evening of 17 April 2012 together and early on the morning of 18 April agreed to "do a job". The applicant took a hand axe/tomahawk which he had purchased the previous day and placed it in the pocket of his shorts. He and Simon decided to go to the 7 eleven store in Cowper Street Glebe which was about 200 metres from the applicant's residence. Both he and Simon had been to the store on previous occasions as customers. 7At about 2.45am on 18 April the applicant walked into the store followed by Simon. The staff member on duty, Mr Singh (Singh), was sitting on the right side of the store. The applicant, who had a blue scarf wrapped around his head partially covering his face, walked straight up to Singh while holding the axe in one hand. Simon, who had followed the applicant into the store, approached Singh from the other side. Simon also had his face concealed behind a grey coloured scarf with a black baseball cap. Both offenders grabbed hold of Singh and pushed him into the storeroom where he could not be seen from outside the shop. 8Once inside the storeroom, the applicant and Simon punched Singh around the head and shoulders. Simon demanded money from him while the applicant demanded the "safe key". One of them threatened Singh by saying "I will kill you if you don't give us the money". Simon was holding a knife with a blade 15 cms long. 9As the applicant held onto Singh by his shirt, Simon held the knife by the handle with the point towards Singh. When Simon pushed the knife towards him, Singh grabbed it by the blade to protect himself. Singh was cut on his left hand around the ring finger as a result of catching the sharp edge of the blade with his bare hand. The wound immediately starting bleeding. 10Singh was struck several more times and then Simon produced a metallic pistol (subsequently shown to be a toy). Simon pointed the pistol towards Singh's face and said "I have the gun where's the money?" Singh believing the pistol to be real was in fear of his life and said "The money's at the front, I will take you there." The applicant and Simon continued to threaten Singh. The applicant swung the axe at Singh's legs forcing him to step back. 11The applicant and Simon found a backpack which belonged to Singh on a cabinet nearby. They looked through the bag and removed a small amount of cash. The applicant and Simon kept Singh inside this room for a few minutes before escorting him to the front counter where he was told to open the cash register. Simon pulled a cordless phone off the counter and smashed it against the floor to prevent its use. Singh was in such fear that he co-operated with the commands given to him as best he could. He entered the code on the cash register to release the till. 12Simon took several notes from the till and placed them in his pocket before loading the rest of the cash into small 7 eleven plastic bags. The offenders noticed a safe under the counter and demanded that Singh open it. Singh was unable to do so as he did not know the code. Simon and the applicant became angry and pushed Singh around again. Simon punched Singh in the face knocking him back into a corner. 13The applicant told Singh to open the cigarette cabinet and put cigarettes into a plastic bag. He was unhappy with the way Singh was loading the plastic bag and swung the axe in Singh's direction in a threatening manner and started placing his preferred brand of cigarettes into the plastic bag himself. The applicant found a bundle of Vodafone phone credit cards on the counter which he pocketed. 14The applicant saw another cabinet next to the safe and tried to force it open by hacking it with his axe but was unsuccessful. The applicant and Simon remained inside the store for about 10 minutes in total. The entire incident was recorded on the surveillance cameras inside the store. 15During the robbery a witness was walking along Glebe Point Road with the intention of entering the shop. He saw what was happening and heard a loud voice coming from inside the store saying "Open it up or we'll shoot you". The witness hailed a taxi and the taxi driver contacted the police. The police arrived on the scene with full lights and sirens a short time later. 16The applicant and Simon heard the sirens and ran out the door carrying the cash and cigarettes. They dropped the plastic bags containing the cash and the cigarettes in front of the store. The applicant ran south along Glebe Point Road and was apprehended by police officers. A search of the applicant resulted in police seizing the axe, the knife and the "firearm" used in the offence. A bundle of Vodafone credits and some cigarettes were found inside his pockets. 17Simon was also apprehended nearby. He was arrested and cautioned. Police recovered an amount of cash which he had taken from the cash register inside his pants pocket. Police became concerned that Simon was at risk of self-harm and took him to the Royal Prince Hospital for a mental health assessment. 18Singh was taken to Sydney Hospital. He was in pain from a number of bruises which he sustained around his face, shoulders and arms, as well as from the wound on his left ring finger. He received four stitches to that wound. He was discharged from the hospital shortly afterwards. Singh was traumatised and distraught from the experience and was unable to work for several days. 19The applicant was taken to the Newtown Police Station where he agreed to participate in an electronically recorded interview in which he admitted the offence. The property taken in the robbery included $644 in cash, 18 packets of cigarettes valued at $294 and Vodafone credits valued at $918. Of this all but $67 in cash was recovered by the police and returned to the owner. The applicant's subjective case 20It is necessary to say something about the applicant's subjective case in order to understand the issues which arose during the sentence proceedings. The applicant at the time of the offending was a successful artist, having won the prestigious "Sulman Award for Modern Art" which is awarded by the Art Gallery of New South Wales. Unfortunately, in the course of celebrations accompanying this win, a friend provided him with a quantity of methylamphetamine and heroin on which he proceeded to binge in the weeks leading up to the offence. 21The applicant had no prior convictions (in 1996 he was dealt with under s556A of the Crimes Act for larceny). In addition to being a well recognised artist, he had a Masters Degree in Fine Arts and had completed a number of years of study towards a PhD in Fine Arts. He had a long standing issue with depression and had been diagnosed in the past with a Major Depressive Disorder. He had a history of substance abuse and had been using methylamphetamine and heroin for about 18 months before the offence. 22The applicant had been exposed to a number of tragic episodes. In 2000 he found his cousin dead in their shared premises, an event which caused him great distress. In 2009 a sister died of a drug overdose. He commenced his drug abuse in the year following her death. His PhD supervisor was murdered by his son. This event significantly affected the applicant who discontinued his PhD studies thereafter. 23The applicant had experienced a dysfunctional childhood and upbringing. His parents divorced when he was four or five years old. His mother regularly relocated the family to hide them from his father, who was an alcoholic. Five of his paternal uncles had suicided. His maternal grandfather had an alcohol problem. The applicant has a younger brother on a methadone maintenance program and his youngest brother abuses methamphetamine. 24In the past the applicant had engaged in suicidal behaviour while intoxicated, including three suicidal gestures following his arrest. He ran at a police officer, he banged his head against the cell wall and he attempted to suffocate himself with a seatbelt in the back of the police car after his arrest. 25The applicant was granted bail following his arrest and spent time in the Sydney Clinic under the care of a psychiatrist, Dr Samson F Roberts. Following his discharge, he succeeded in maintaining sobriety. At the time of sentencing, he had been on bail for 14 months and he continued to be treated successfully in the community by Dr Roberts and a psychologist. 26Dr Roberts provided three reports for consideration by the Court (31 July 2012, 26 June 2013, 4 September 2013). In the report of 31 July 2012 Dr Roberts took a history that in the period before the offence the applicant was consuming a minimum of 15 beers a day with whiskey on occasions. He had used opiates since the age of 18 and his use had escalated over the 12 months before his admission to the Sydney Clinic. He had been using ice for more than 18 months before the offence. 27Dr Roberts took a history that all of these substances were used "as an escape from depression". The applicant had been prescribed Zoloft for depression, but had ceased to take it before the offending. He had been treated for depression for 7 years. At page 11 of the 31 July 2012 report, Dr Roberts said: "In the period before the events for which Mr Milsom is before the court, he had experienced a relapse of his depression, having ceased antidepressant medication and resumed substance use. Severe depressive illness is typically associated with apathy for consequence, impaired cognition and reasoning and vulnerability to coercion." The sentence proceedings in the District Court 28The sentence hearing commenced before his Honour at 2pm on 28 June 2013. Counsel for the applicant called his partner of 6 years, Ms Crouch. She provided background information as to their relationship, his artistic endeavours and his abuse of drugs leading up to the offence. Ms Crouch gave evidence about the applicant's psychiatric difficulties and how he had tried to deal with them over the years. At the time of the sentence hearing, the applicant had moved from Glebe to stay with his family in Newcastle. 29It was while Ms Crouch was giving evidence that an exchange took place between his Honour and counsel for the applicant to the effect that his Honour would not be able to make a finding of fact that at the time the applicant purchased the axe he was not intending to commit the robbery unless the applicant gave evidence (28.6.2013 - T12 - T13). 30Character evidence was called on behalf of the applicant from Mr King, after which the applicant gave evidence. The clear inference from the transcript is that counsel appearing for the applicant had not intended to call him but did so as a result of the comment from his Honour to which reference has been made. 31The applicant gave evidence that he had little recollection of the offence. In relation to the purchase of the tomahawk or small axe, he referred to other items bought at the same time which were consistent with him performing some painting work and handyman work at home. He said that he had purchased the tomahawk in order to split some small pieces of wood, which were to be used in the project. The applicant then gave evidence as to taking substantial quantities of drugs leading up to the offence. He said: "Well I smoked some ice in the morning, smoked some heroin sort of in the afternoon. Smoked some more ice, took some Xanax, Rivotril, smoked some more heroin, finished off the ice that I had." (28.6.13 - T.40.2) This evidence was consistent with what he had said in his ERISP at the time of his arrest. 32Just before cross-examination of the applicant commenced, his Honour requested that the police custody records be produced with a view to finding out what disclosure had been made by the applicant concerning his pre-offence drug taking (28.6.13 - T.44). There was also an issue of whether he was capable of making an ERISP at that time. When those documents were not readily available, his Honour adjourned the matter. After the applicant had withdrawn, the following exchange took place: "HIS HONOUR: In terms of range Mr Waterstreet do you wish to be heard on a range? WATERSTREET: My submissions put the case better than I would in answer to that, your Honour. We would be agitating for what's said in my submissions and that would be a non-custodial sentence and in circumstances as set out in that. Your Honour would see attached to it the statistics from JIRS. HIS HONOUR: Mr Waterstreet I'll tell you now my preliminary view is this. I do not see this as a Muldrock type situation where the offender can seek solace in what the High Court said about persons suffering from illness. WATERSTREET: No your Honour but - HIS HONOUR: That being so this is a case which would fall much on the higher side than Henry which means I would be in appealable error if I was not to impose a significant custodial sentence. WATERSTREET: No your Honour. For the reasons set out in the -- HIS HONOUR: That's where we are at the moment. I mean I'll consider all the material, I haven't looked at the submissions. WATERSTREET: Your Honour would be assisted in our submission respectfully, by reading the submissions. Your Honour can - I go to the point your Honour - I don't think the Crown opposed bail on the 19th. HIS HONOUR: Well I think bail should be refused today now that we're into the sentencing process. WATERSTREET: I don't think it's opposed your Honour but I've told my client that if bail was granted, that there would be no expectation that he was significant in the sentence. HIS HONOUR: Not for this offence Mr Waterstreet. I propose to -- WATERSTREET: Your Honour hasn't read my submissions. HIS HONOUR: No I haven't. WATERSTREET: Your Honour is not acquainted with the statistics and the law as set out in those cases that I've referred to. HIS HONOUR: But at this stage I formally refuse bail for both prisoners. The court is adjourned to 19 July." (28.6.2013 - T.47) 33On 18 July before the sentence proceedings resumed, there was an application by the applicant that his Honour disqualify himself for apprehended bias. The basis for the application was that his Honour had raised his voice on a number of occasions when asking questions of the applicant, his Honour's request for the custody records, his Honour's cross-examination of the applicant concerning the purchase of the tomahawk, his Honour's apparent scepticism as to the amount of drugs which the applicant had taken before he committed the offence and his Honour's peremptory revocation of bail. His Honour refused the application and advised that he would give reasons at a later date. Those reasons have not yet been given. 34The matter resumed on 19 July in accordance with the order made by his Honour. The morning was spent dealing with submissions on behalf of the co-offender, Simon. In the course of those submissions, the following exchange took place between counsel for Simon and his Honour. "ROGERS: But if your Honour was for example to start at something around the 5 year mark which is the upper end of Henry, we would say that there has to be some further discount for the plea of guilty and the sentence can be reduced we would say further by the issue of a reduction in a consideration of moral culpability which I've put in my written submissions. We would say that for Mr Simon might bring the head sentence to below 4 years and special circumstances could then be found which may provide for your Honour grounds to structure a sentence where he may be looking at a non-parole period of 2 ½ years or something thereabouts. The only perhaps other factor that your Honour might need to take into account is the issue of parity. Look it's conceded that the co-accused must receive a lesser sentence than Mr Simon and ... HIS HONOUR: The question is, is whether or not he receives a non-custodial sentence and in respect of parity matters, that's relevant to your client and that's ... ... HIS HONOUR: I raised earlier with Mr Waterstreet and I'm going to re-visit it, the issue of an ICO but of course I'd have to find for Mr Milsom that it's a matter of less than 2 years in order to do that." (19.7.2013 - T.18.48 - 19.28) 35During the course of submissions from the Crown in relation to Simon, his Honour said: "HIS HONOUR: Well just on the parity argument if it was that I was to give a say two years ICO to Mr Milsom, wouldn't I have to reduce Mr Simon's head sentence? ..." (19.7.2013 - T.22.21) At the end of submissions in relation to Simon, this exchange took place. "ROGERS ... if your Honour is reserving for that period of time, I'm ... HIS HONOUR: The reason being that I may subject to this afternoon to submission is to consider an ICO for Mr Milsom and that I'm told is six weeks." (19.7.2013 - t.24.28) 36Shortly after 2pm the sentence proceedings in relation to the applicant resumed. The applicant's treating psychiatrist, Dr Roberts, gave evidence. His evidence was that the applicant had experienced a difficult time while in custody between the two hearing dates. His depression had worsened, he had been subjected to threats and had been intimidated by a cell mate. His Honour asked a number of questions directed to whether during his treatment by Dr Roberts, the applicant had abstained from drug abuse. Dr Roberts replied: "ROBERTS: A. Yes. And during the period in the clinic it's routine that patients are subjected to urine drug screening and - to confirm abstinence from substances." (19.7.2013 - T.28.17) 37The effect of Dr Roberts' evidence was that continuing treatment at the clinic would be very beneficial for the applicant, particularly in relation to rehabilitation in terms of re-establishing a stable and professional existence. Dr Roberts said that he would be pleased to play a part in the applicant's ongoing psychiatric care. His Honour intervened on a number of occasions (but as I read the questions sympathetically from the point of view of the applicant). His Honour's questions were directed to the applicant's abuse of drugs leading up to the offence. One of the responses elicited by his Honour's questions was that the applicant's cessation of taking Zoloft when he commenced bingeing on drugs following the presentation of the Sulman Award, would have worsened his depressive condition (19.7.2013, T.31.1). 38After Dr Roberts finished his evidence, further submissions were made by counsel for the applicant to the effect that the applicant's depressive condition was an important matter which his Honour needed to take into account, both as contributing to the applicant's offending and as part of his subjective case on sentence. A discussion of some length between counsel for the applicant and his Honour took place as to the effect of the evidence given by Dr Roberts. Counsel for the applicant submitted that the applicant's circumstances, including his psychiatric condition, were such as to enable the court to make a finding of "exceptional circumstances" which would lead to the applicant receiving a non-custodial sentence. In the course of those submissions, his Honour said: "HIS HONOUR: The Crown doesn't agree with you at this stage as I understand it. The Crown says full time custody. To give an ICO or a bond, I've got to get the head sentence down to two years." (19.7.2013 - T.48.34) While not rejecting the applicant's submission, his Honour was clearly troubled by the seriousness of the offending. He set out matters impacting on the objective seriousness of the offending at T.49. 39At the conclusion of those submissions, his Honour said: "HIS HONOUR: That's not the concern here, the concern is to look at the facts and to see what I can do with the available authorities. If we go back to the first point it carries 25 years and a standard non-parole period of 7 years where parliament has indicated, as a guidepost, penalties are to be increased for this type of offence. In circumstances where there's been - as part of the crime there has been a wounding and the victim has to be considered for the, what on one view is a brutal bashing of him." (19.7.2013, T.52.10) 40Not surprisingly, at the end of the day the Crown made the following submission: "SHAW: .... My problem with this your Honour, we've had I think extensive submissions from senior counsel and a fair amount of conversation between the two but when we adjourned the last time, the offender was actually sworn in and I was preparing for cross-examination, your Honour asked him a few questions and then we came to the end of the day and I need to cross-examine him your Honour but given the doctor's evidence today that he has been off - I didn't catch whether it was three days or seven days off his Zoloft your Honour. .... it would be unfair to put him through a cross-examination at this stage when he's been off his medication." (19.7.2013 - T.53.1) 41His Honour agreed that the matter should be adjourned: "HIS HONOUR: If there is to be a delay Mr Crown, I will hear you on bail but I would be proposing to grant him bail again perhaps on the condition that he - with a reporting condition at Newcastle and he perhaps remain with someone. I mean he needs to have someone with him and observing him." (19.7.2013 - T.53.44) Bail was not opposed by the Crown and was granted. 42At the end of proceedings on 19 July his Honour asked to see counsel for the applicant and the Crown in a side room off the Court. He then spoke to both of them concerning the sentence proceedings. Both counsel for the applicant and the solicitor appearing for the Crown have sworn affidavits as to what was said during that discussion. While their versions are not identical, the thrust of what was said emerges clearly. 43The recollection of counsel for the applicant was as follows: "The Judge asked to see myself and the Crown in the alcove. In the alcove the Judge said to me words to the effect of: Trial Judge: We cannot send this man [the applicant] to prison. Did you see him out there? I've read your books, especially Repeating the Leaving. I've given them to counsel, other barristers and people who are suffering depression. The Trial Judge then addressed Mr Shaw "I want you to speak to Lloyd Babb to tell him that the DPP should not appeal this matter". The Trial Judge then appeared to be addressing both Mr Shaw and myself and said words to the effect: "I am worried about the Newcastle community because I am such an advocate against crystal meth in particular and I'm worried about an appeal." The Trial Judge continued to say: "I've done my best to rack up some extra days in prison by refusing bail." 44The recollection of Mr Shaw, the solicitor appearing for the Crown, was: "I recall the conversation referred to by Mr Waterstreet in his affidavit of 21.2.14. At the close of the day I was called into the Judge's side room of the Court by his associate to see his Honour. When I arrived his Honour and Mr Waterstreet were standing facing each other, in conversation. His Honour turned to me. I recall the conversation as this: HH to CCS "Colin I don't want to send this man to prison." CW to both: "The Director won't appeal if he doesn't go to gaol. Colin can have a word with the Director?" HH to CCS: "Every time up in Newcastle that it's ice the DPP go mad if I don't put them in, they are always appealing [and more of the same]." CW to both: "No, no-one's going to appeal it." CCS to HH: "I might put it up to the Director." There may have been a little more conversation than related. Any other conversation was only repetition of the same point. I do recall the first line from HH vividly as it came out of the blue, there was no preamble, no introduction." 45In his affidavit, counsel for the applicant went on to say that after that conversation, he informed the applicant and his immediate family that the Judge had indicated in court and in chambers that he was not sentencing the applicant to a further period of imprisonment. Counsel said that he reached this conclusion, both as a result of what was said in court and out of court, and the unconditional granting of bail. 46The matter resumed before his Honour on 9 September 2013. Further evidence was tendered on behalf of the applicant comprising an updated report from Dr Roberts and a report from a psychologist. The applicant was re-sworn and cross-examined by the Crown. The cross-examination was directed to the applicant's pre-offence drug taking, with particular reference to what he had said in his ERISP. His Honour commenced cross-examining the applicant at T.17.50 up to T.23.14. His Honour's questions were directed to how and from where the applicant had obtained illicit drugs before the offence and the extent to which he and Simon had used those drugs, in particular methamphetamine and heroin at that time. 47At the conclusion of the applicant's evidence, further submissions were made by both the Crown and applicant's counsel. In the course of submissions by the Crown, the following exchange took place: "HIS HONOUR: That's all right. But look, in terms of, as we know, from the outset Mr Waterstreet says this is a matter where the offender should not go into custody further. He hasn't had a lot of time in custody. It's not a matter where he's done six months or nine months in custody to say that should be taken into account in a much larger way than it might be, but does the Crown say that this has to be a custodial sentence? SHAW: It should be, yes, your Honour, and I would not bind the Director by saying that your Honour would fall into or not fall into appealable error if you didn't send him to gaol fulltime but the gravity of the crime and the nature, the circumstances ... HIS HONOUR: Sorry, are you saying I can get it down to under two years custody and therefore deal with it by an ICO or a s 12? SHAW: I'd say that you could not do that, your Honour. We could beat around the bush with semantics all day long but I say that would not be within scope. HIS HONOUR: In terms of Mr Milsom's rehabilitation, you don't dispute that he has rehabilitated. You don't ... SHAW: I don't, on all the evidence. HIS HONOUR: ... dispute he hasn't shown adequate remorse. SHAW: He has shown adequate remorse. The only other submission I can make, your Honour, is that the subjective features, which we concede are strong and in some areas powerful, should be given their due weight in the whole of the sentencing process and it is very easy for the Court to place undue weight on only those subjective features, your Honour. ..." (9.9.2013 - T.42.4) 48A further exchange took place between his Honour and the Crown: "HIS HONOUR: Well what about the submission that there are most exceptional circumstances. They're my words, not Mr Waterstreet's ... SHAW: Yes, I listened to those, your Honour. Again, he came under senior counsel's words before the court with a particularly, not unique, that wasn't the term used, but his subjective problems marked him out as it were, but many people come for sentence before these courts with tragic lives, your Honour, which involve repeated sexual, of course, assaults which haven't been disclosed ... HIS HONOUR: Well this is not that sort of offence. SHAW: No. HIS HONOUR: This is a man who, up until this matter, had an exemplary life and, in one way, providing some public service in terms of his assistance to other artists and to the university. SHAW: And I agree, on his record violence is out of character and on what ever else the court's been told, there's no indication he's otherwise a violent man, we accept that, your Honour. HIS HONOUR: And accepting that he did have major depressive disorder when he got onto this methamphetamine ... SHAW: But the Crown says that he had a major depressive disorder that was being adequately treated to the best means that we know at the moment, your Honour. By the best means and to the best account. It was his decision to discontinue that in search of something else. HIS HONOUR: On behalf of the defendant it's said well what's the point of sending this man to put him into custody for any further period of time? SHAW: General deterrence, your Honour, not specific deterrence but general deterrence. HIS HONOUR: But how many other 37 year olds do you see ever doing this? That's what I'm just trying to get the concept. If he was, say, 27, perhaps, but where you're 37 and you've had good public service, doesn't that put it in his favour? That's what I'm struggling with at the moment. ... HIS HONOUR: ... You can't have a strong as subjective case as here, and then to be balanced by general deterrence, I mean where is that line at the moment? And I know the facts are serious, I mean the matter that concerns me, I didn't say anything to Mr Waterstreet, but, is that the time it went on, where this offender has the tomahawk and the shop assistant is around the back and then they see the safe, and at that time there's, in the facts there, I think it puts that this offender wielded the, bottom of page 2 [his Honour quotes from the Agreed Facts] ... So it's a long period of time, and at that time they're trying to get into the safe. So, I mean, it puts it - yep, okay. Is there anything else then, Mr Crown?" (9.9.2013 - T.43.6 - T.44.35) 49It was agreed between the Crown and counsel for the applicant that allowing for time spent in the Sydney Clinic, the applicant had spent 54 days in custody. When that figure was placed before him, his Honour said: "HIS HONOUR: Gentlemen, I don't think, it's either going to be one or the other, I don't think I can get it down for an ICO, Mr Waterstreet. WATERSTREET: Well, your Honour .. HIS HONOUR: It's either one or the other, it's either I find most exceptional circumstances and he doesn't spend anymore time - well, I guess 54 days is a significant amount of time to go into most exceptional circumstances and ..." (9.9.2013 - T.46.40) 50When his Honour advised that he would deliver judgment on 13 September 2013, the Crown made the following request: "SHAW: I was only going to ask your Honour, whatever your Honour's going to do, could we ask, for everyone's ease, that you ask for your remarks on sentence to be taken out with some haste and ... HIS HONOUR: Well they will be, and I'll do it on Friday, I think, for both. You don't have to be here, Mr Waterstreet, we'll get a copy to you ASAP ..." (9.9.2013 - T.47.30) Remarks on sentence 51His Honour handed down sentence on 13 September 2013. He made a number of factual findings. His Honour found that the applicant had taken methylamphetamine and heroin in the hours leading up to the robbery and was affected by both those drugs at the time that he went to the store. He found that the applicant gave Simon either heroin and/or ice shortly before the robbery. His Honour found that at the time of entering the shop, it was the applicant who had taken the lead and that he made the first assault upon the shop assistant (ROS 4.2, 4.5). 52Having sentenced Simon, his Honour directed his remarks to the applicant. On the issue of parity, his Honour said that although the applicant did not have a criminal record, he had been a drug user for many years involving ice, heroin and other prohibited drugs and that this was a matter relevant to that issue. 53His Honour reiterated his earlier finding that the applicant had provided ice to Simon. His Honour characterised this as criminal behaviour which could not be countenanced by a court. His Honour said: "It is a matter that relates to his criminal behaviour which had occurred over a long period of time by his use of heroin, ice and other prohibited drugs. Although he has no criminal convictions, he comes before this court as a person who was involved in significant drug offending and as far as I can understand it, up until recent times, made no apology for it." (ROS 10.9 - 11.2) 54His Honour had regard to the applicant's unfortunate background and that he had suffered from a major depressive illness for many years. His Honour also noted the oral evidence and references as to the applicant's good character. 55His Honour expressed some reservations about that evidence: "However, in respect of those references, none of those persons addressed his continuing offending behaviour which gave rise to this offence, that is, that he was addicted to heroin, ice and other drugs and perhaps alcohol and despite those addictions he was seen to be a very good person. That is a difficult proposition to accept by a court where the excessive use of a drug such as methamphetamine (ice) can have and in this case did have the effect of putting some person in fear of their life, being injured and presumably suffering the difficulties that flow from what was a vicious attack upon him. In one way this offender does not have any excuse for his behaviours. He is well educated, having a Masters Degree in Fine Arts and was on his way to a PhD in Fine Arts. He has had the support of a partner/friend who is eminent in her career as a photographer. He has the support of his sister, a well known arts correspondent for a local newspaper. He has the support of other persons eminent in the community and despite these supports and despite the medical advice that he had had for many years and as it would appear in respect of his major depressive illness which was under control with the use of the well known medication Zoloft was able to function artistically at his highest. In respect of this matter the court finds that his behaviour on this night was unrelated to any underlying major depressive illness or in respect of any other illness or psychological condition that could be said to fall within the case of R v Muldrock as was submitted by his counsel. This is an example once again in this court where a person affected by methamphetamine (ice) does something that other persons who are well known to them would not and could not understand or countenance. But for a person who has used ice and heroin over years it was known to him as to the consequences of his actions when he binged on this dangerous substance." (ROS 11.7 - 12.6) 56His Honour rejected the evidence of Mr Watson-Munro, psychologist, who sought to provide an explanation for why the applicant had ceased taking his Zoloft medication. His Honour said: "What is clear for the reasons that I have set out above and what was evidence given by the offender in this court was that he for three weeks had binged on ice and/or heroin and/or other drugs and in respect of his behaviour, that was related to the drug or drugs overtaking his normal mental facility. In that regard a person who does that is not entitled to any diminished moral culpability. That person is responsible because of their drug use for the consequences and their actions that flow from that drug use and that is what I have found in respect of this matter." (ROS 13.8) 57His Honour referred to the reports of Dr Roberts and his evidence and accepted that the applicant had been substantially rehabilitated by the treatment which he had received from Dr Roberts. His Honour found: "... what is clear from Dr Roberts's reports and evidence is that when on ice that particular medication overwhelmed this offender and in respect of the actions of this night, whether it be of his initiative or his co-offender's initiative, whatever they be I have no hesitation in finding that he was drug affected by methamphetamine. I have indicated in my reasons in respect of the co-offender Simon that the community cannot accept that persons who use drugs illegally for periods of time and promote themselves as decent members of the community can then seek to get a benefit from courts when there has been long-standing criminal behaviour. This is such a case. This is a person who may have used drugs to overcome what had been his unfortunate history of very sad and tragic events and/or may have been used in respect of some way to gain a sense of wellbeing in respect of his artistic endeavour, but for whatever reasons, the offender knew that it was illegal to do what he was doing and he had medical assistance at least as early as 2005 by Dr Morgan and it would seem that medical assistance in the nature of Dr Roberts was available at a later point in time. I accept that now that he has come under the care of Dr Roberts and has been now seeking counselling from a local psychologist in Newcastle he will hopefully, avoiding drugs, continue with his artistic endeavours and he will rehabilitate himself. The rehabilitation in respect of this offender is subject to his willingness and abilities to deny his addictions; alcohol, heroin, ice and prescription drugs." (ROS 14.8 - 15.5) 58His Honour concluded: "It was submitted on his behalf by Mr Waterstreet that this is a matter where there are most exceptional circumstances and that it is a matter where there should not be a custodial period save for the 50 days that he has served by way of his initial bail refusal when he was arrested, his days at the Sydney Clinic and in most recent times when he as bail refused in this matter. The court does not accept that submission. In respect of this matter for the reasons of the seriousness of the offence and although there is evidence of his rehabilitation and of his remorse, nonetheless the fact remains that throughout most of his adult life at least he has considered the use of drugs, heroin and methamphetamine, to be par for the course and I for this court's part cannot see any change in attitude save as for the danger and/or risk those matters form in his offending behaviours. In the co-offender's matters the court has set out the need for general deterrence and those general deterrents need to be repeated. In this offender's case if a person uses illicit substances that are capable and indeed alter the mind and they are a person who does have intelligence and is able to understand that matter, then they cannot seek the benefit of the law as suggested in this matter. They must pay and must be an example to others that if they use heroin, ice or other drugs and then offend, they must be sentenced adequately and severely. In respect of this particular offender there is a need for specific deterrence, that is, if he uses drugs again on his release, he will not get the benefit that this court will extend on this occasion." (ROS 15.6 - 16.4) 59His Honour acknowledged the very strong subjective case of the applicant but thought that even this was compromised by his history of prior drug taking. His Honour said: "He is a person not only of good character, what might be seen exemplary character, that is, that he has assisted other aspiring artists, but of course that was done in the circumstances where he was a significant drug user using drugs that could cause death and injury to others and there lies, it might seem, the dilemma for this offender and others and the matter that I have earlier referred to." (ROS 16.8) 60Because of the applicant's early admissions, his Honour allowed a 25 percent discount on sentence. Before passing sentence, his Honour set out his conclusions as follows: "The court will find that each were responsible jointly and there can be no lesser or greater apportionment of blame. What is clear for the reasons I have already stated was this person who provided the ice to himself and most likely the ice to Mr Simon and whether money was owed to this person or not, nonetheless in terms of what was described to the court the madness of this offending, they are both responsible. When one goes through the facts and seeks to imagine what the shop assistant at that early hour of the morning was subjected to, that is, the threat of being hit with a tomahawk, the threat of being stabbed with a 15 centimetre knife and then being shot with a pistol, as I have said, puts this certainly into the mid range of seriousness for an offence under s 98." (ROS 17.3) Ground of Appeal 1 61The applicant submitted that the course of the proceedings was irregular. He submitted that although each of the eight matters raised in Ground of Appeal 1 was insufficient of itself to provide a basis for quashing the sentence imposed, taken together they did so. The applicant submitted that taken together these matters caused the proceedings to miscarry. (i) His Honour cross-examined the applicant about the circumstances of his acquisition of the tomahawk on 28 June 2013. 62The applicant submitted that sentence proceedings are adversarial in nature and that it is the task of the prosecution to cross-examine and challenge issues raised by the defence. He submitted that in this case his Honour had intervened impermissibly when he made it clear that he would not accept a submission that the tomahawk was purchased for a reason unconnected with the robbery unless he gave evidence. He submitted that this resulted in it being necessary for him to give evidence in circumstances where that would not have occurred had his Honour not intervened in the way in which he did. He submitted that his Honour's cross-examination on that issue went beyond clarification of answers and was excessive in the circumstances. (ii) His Honour asked the prosecutor to obtain and tender the applicant's Custody Management Records. 63The applicant submitted that his Honour interfered with the adversarial nature of the proceedings by requiring the prosecution to produce the applicant's "police custody records". The applicant submitted that this direction was in a context where, implicitly at least, his Honour was expressing some scepticism about the extent of the applicant's intoxication by drugs at the time of the offending. The applicant submitted that it was not the function of a sentencing judge to direct that evidentiary material be produced. The applicant submitted that this circumstance was very different to where a sentencing judge might request evidentiary material or ask the parties whether a certain type of evidentiary material was going to be produced. 64The applicant referred the Court to Madden v R [2011] NSWCCA 254 where Simpson J (with whom Whealy JA and Hislop J agreed) said at [29]: "29 ... the courts of NSW operate on an adversarial system. The roles of counsel and the judge are clearly defined and trespassing by one upon the role of the other is not to be encouraged ... It is not the role of a judge to seek out evidentiary material, nor to determine the scope of the evidence put before him or her. ... a judge must be very circumspect in intruding into the role of counsel." (iii) His Honour refused bail at the conclusion of proceedings on 28 June 2013 without any application being made by the Prosecutor and without hearing from the applicant. 65The applicant submitted that before his cross-examination had been completed, before all the evidence had been called in his case, and before submissions had been made and written submissions read, his Honour peremptorily revoked bail. The applicant submitted that this was in circumstances where he was already on bail, the Crown did not oppose the continuance of bail, no opportunity was given to his counsel to make submissions to the contrary and his Honour gave no reasons. The applicant submitted that the overwhelming inference was that at that time his Honour had already made up his mind to impose a significant term of imprisonment. 66On that issue, the applicant relied upon Branko Balic (No 2) (1994) 75 A Crim R 515 where Cole JA (with whom Handley and Sheller JJA agreed) said at 520: "In my view here there is no question of actual bias. It can readily be assumed that Judge Court paid full regard to all that was put to him when bail was being considered on 4 November 1994. Nonetheless the person seeking bail had been told in advance that his Honour had made the remarks quoted by Mr Ford. Those remarks were capable of being interpreted as a pre-judgment. Mr Balic, and the public, could reasonably entertain an apprehension of pre-judgment on the bail application. Once such a decision is so tainted, it must be set aside. A consequential effect is that Mr Balic, or fair-minded members of the public, could reasonably hold the view that any subsequent trial presided over by Judge Court may not have that appearance of impartiality which is necessary. There can be no doubt the trial would be conducted fairly by Judge Court, but that is not the test." (iv) His Honour dismissed an application that he disqualify himself for apprehended bias without delivering any reasons. 67The applicant submitted that there was a sound basis for the application that his Honour disqualify himself for apprehended bias. The applicant referred to the matters raised before his Honour when the application was made, i.e. the revocation of bail, making an observation which in effect compelled the applicant to give evidence and calling for the production of the Custody Management Records. The applicant submitted that these were significant matters which were indicative of an apparent pre-judgment on the part of his Honour. The applicant submitted that at the very least his Honour should have given reasons for the dismissal of the motion and his refusal to disqualify himself. (v) His Honour initiated a conversation in the court ante room with counsel which was not recorded, in which he indicated that he could not send the applicant to gaol and in which he urged the Prosecutor to tell the DPP not to appeal his decision. 68The applicant submitted that his Honour's conduct in bringing both advocates into the ante room without any request from them, in circumstances where there could be no record of what was said, was most irregular. The applicant submitted that his Honour's remarks about not sending him to gaol could only be interpreted as an intention on his Honour's part not to impose a custodial sentence. Such an impression was confirmed by his Honour urging the solicitor for the Crown to obtain an undertaking from his superiors that if a non-custodial sentence were awarded, there would be no Crown appeal. The applicant noted that this discussion took place after his Honour had reinstated bail without an application by him. 69The applicant submitted that this Court had on a number of occasions disapproved such irregular proceedings. He referred to R v Foster (1992) 25 NSWLR 732 where Carruthers J (with whom Loveday J agreed) said in relation to consultations between legal representatives and a judge in chambers in sentence proceedings: "The above is sufficient to dispose of this application but it is, I think, appropriate to make some observations about the practice of legal representatives consulting the judge in private chambers. Superior courts in this country and in England have over recent years stressed the undesirability of legal representatives in criminal proceedings consulting with the judge in private chambers. These judicial strictures are, however, not always heeded, and the present case should operate as a reminder and as a warning to judges and the legal profession of the irregularity and undesirability of the practice. ..." In Foster their Honours referred to R v Tait and Bartley (1979) 46 FLR 386; 24 ALR 473 where the Full Court of the Federal Court (Brennan, Deane and Gallop JJ) regarded the receiving by a judge of information relevant to sentencing in chambers, even with the consent of both parties, was irregular. On this issue, the Federal Court said: "In the present case, the confidential information was communicated to the judge not in court, but in chambers. That procedure was understandable but irregular. It was understandable because the judge sought a way of securing the confidentiality which the circumstances suggested were desirable. Nevertheless the procedure was irregular, for the judge received material relevant to the sentence out of court and in his private chambers. The consent of the parties provides no warrant for such a procedure, though we were assured from the Bar table that the practice was a usual one, and that it has the support of English authorities. The practice by which a judge in chambers exercises the jurisdiction of his court, which Dixon J described as a 'well-understood mode of exercising the judicial authority belonging to a judge in virtue of his office as a judge of the Supreme Court' (Medical Board of Victoria v Meyer (1937) 58 CLR 62 at 97) is not a practice which authorizes a judge sentencing a prisoner to receive in chambers information which is calculated to affect the sentence. If his court cannot be closed without statutory warrant, a fortiori he cannot hear submissions in his private chambers. ..." (P 405) 70Having analysed the authorities, the conclusion arrived at by Carruthers J in Foster at 741 was: "These cases demonstrate that consultation between the judge and legal representatives of the parties in a criminal case is fraught with danger and to the extent that it still exists the practice should cease. I find it difficult to envisage a case where, if sufficient precautions are taken, any problem arising during the course of a criminal trial cannot be resolved in open court in the absence of the jury. Certainly, when it comes to advising the judge of assistance rendered or to be rendered by a prisoner to the authorities the sealed envelope procedure should be adopted. To the extent that it is necessary to give evidence of an oral nature then a little tact and commonsense should avoid undue publicity. It cannot be too strongly emphasised that private discussions place the judge in an invidious position if a dispute subsequently arises between the judge and counsel as to what had transpired, if for no other reason than that the judge cannot give evidence as to his or her version of events. Although, I am constrained to add the comment that I consider the practice of members of the legal profession seeking to give evidence of what transpired in a judge's private chambers to be professionally distasteful. The preferable course is for all concerned to avoid the problem ever arising." 71In Foster Smart J said at 742D: " ... It is highly undesirable that matters of this kind or any matter of consequence should be canvassed in private chambers in the absence of the accused. It is important to avoid having to refer to what is said in a judge's private chambers between the judge and the legal representatives in the absence of the parties. Frequently there is no common recollection as to what was said. Disagreements or inability to recollect what was said in private chambers may lead to one or other of the parties having a sense of disquiet. Neither the judge nor the legal representatives should be expected to have to remember what was said for future use." 72The applicant submitted that the manner in which the proceedings were conducted thereafter should be considered in the light of his Honour's out of court comments. He submitted that both parties were given the impression that his Honour was minded not to impose a significant period of imprisonment and was likely to impose a non-custodial outcome. In that regard, this sub-ground of appeal should be considered with (vi) and (viii). (vi) On 19 July 2013 his Honour granted bail without the applicant making any application for bail. 73The applicant submitted that the unconditional granting of bail on 19 July 2013 was a clear signal that his Honour was minded to impose a non-custodial sentence. This was consistent with the out of court position which his Honour indicated to counsel on that day. (vii) His Honour extensively cross-examined the applicant about his drug related offending on 9 September 2013. 74The applicant submitted that his Honour's cross-examination of him on 9 September 2013 as to the source of the drugs which he had been using went considerably beyond that which was appropriate in sentence proceedings. It raised issues which had not been pursued by the Crown. The applicant noted that he had consistently asserted that his co-offender, Simon, had been his regular source of drugs. The applicant accepted that after considerable questioning he conceded that in the weeks preceding the offence, he had shared drugs with Simon (9.9.2013 - T.22.13). The applicant submitted that this was the only evidence in the proceedings that suggested that he had provided drugs to Simon but was the basis for his Honour's adverse conclusion that he had provided ice to Simon and that he "was involved in significant drug offending" (ROS 11.2). 75The applicant submitted that his Honour's cross-examination on 9 September was an inappropriate intervention in the proceedings that it gave rise to his Honour reaching an important conclusion which was adverse to him and which led to the imposition of an inappropriately higher sentence. (viii) His Honour failed to indicate to the applicant that he was actually contemplating a sentence of about 6 years' duration. 76The applicant submitted that from the time of the out of court discussions on the afternoon of 19 July, very little occurred to put his legal advisers on notice that his Honour was considering a sentence of 6 years or more. He submitted that the submissions of both advocates focused on whether the applicant's sentence would be more or less than 2 years, such as to allow the court to fully suspend the sentence. 77The applicant submitted that during the course of the proceedings on 19 July, the exchanges between the bench and the advocates focused almost entirely upon whether an ICO or a suspended sentence would be appropriate. He submitted that the exchanges and submissions on 9 September were to similar effect and drew attention to his Honour calling on the parties to address him as to whether there were "most exceptional circumstances" justifying a non-custodial outcome. The applicant noted that even though the Crown had not accepted that proposition, his Honour had tested the Crown's position with a series of questions relating to rehabilitation, remorse and his major depressive disorder in a context which could only be regarded as favourable to him. The applicant submitted that this impression was further strengthened by the inquiries by his Honour as to the exact number of days he could be considered to have spent in fulltime custody. The applicant submitted that the judge's final remarks to his counsel could only be interpreted as an indication that his Honour was of the opinion that the case was close to the margin of being a non-custodial sentence. 78The applicant submitted that because of the clear impression given by his Honour on 19 July and 9 September, his legal advisors were denied the opportunity to make submissions in opposition to the course that his honour ultimately took. The applicant submitted that his legal advisors were also denied the opportunity of making submissions as to the length and structure of any custodial sentence imposed. By way of illustration, the applicant submitted that had he been on notice that his Honour was considering a sentence of about 6 years, his legal advisors would have stressed parity and the sentencing factors that favourably differentiated him from Simon. 79The applicant submitted that the eight matters identified in this Ground of Appeal constituted significant irregularities in the sentence proceedings which ultimately worked to his disadvantage. The applicant submitted that the sentence proceedings were marked by inappropriate intervention by his Honour, inappropriate communication with the legal advisors in private and indications which seriously misled his counsel as to the sentence which his Honour was going to impose. In that regard, the applicant submitted that the proceedings on 19 July and 9 September had miscarried in that it was apparent from his Honour's comments that he was using a "bottom up" approach to sentence, i.e. he had a sentence in mind and was looking for factors to justify that sentence rather than adopting the proper approach of taking all factors into account and as a result of a consideration of those factors, reaching a final sentence. 80The applicant submitted that the irregularities in the sentence proceedings were such that procedural unfairness had occurred and that there had been a miscarriage of justice. Crown submissions as to Ground of Appeal 1 81The Crown submitted that in relation to (i), there was a live issue as to the purpose of the purchase of the tomahawk. In the circumstances, his Honour was entitled to ask questions of the applicant to test that issue. 82The Crown submitted that in respect of (ii), there was no objection by counsel for the applicant when his Honour called for the Custody Management Records and that ultimately there was no finding adverse to the applicant made as a result of their production. As with (i), the Crown submitted that even if there were some irregularity (which was not conceded) there was no adverse effect on the applicant in the sentence proceedings. 83The Crown submitted that in relation to (iii), the revocation of bail occurred after a discussion about the likely penalty, the discount for the plea and the fact that the court was now conducting sentence proceedings. The Crown submitted that in those circumstances it was appropriate for his Honour to revoke bail. The Crown submitted that his Honour had clearly not prejudged the matter, given the subsequent protracted nature of the proceedings and the changes in approach which occurred during them. 84In relation to (iv), the Crown submitted that although reasons had not been given by his Honour, the basis for his rejection of the application that he disqualify himself was amply set out in the transcript of the application of 18 July. In answer to a submission made by counsel for the applicant, his Honour responded: "HIS HONOUR: With respect to Mr Waterstreet and Dr Roberts I was concerned - or am concerned - about matters set out in the record of interview in respect of - that may have been seen not to be in the offender's favour. On one view of it, accepting what appears to be the accepted evidence of his drug use leading up to this event, he should not have been questioned if he was affected by drugs, as he was at that point in time. Frankly in respect of the issue of the purchase of the tomahawk I think that is irrelevant because it's not the purchase of the tomahawk during the day, it's the taking of the tomahawk from the studio in Glebe to the 7-Eleven. That's the issue. But your predecessor had emphasised those matters. My concern is that in terms of a Muldrock type situation, the essential evidence was not being adduced. That's what the document I thought might go to and as you know that custody record could still be objected to and would be objected to by you or Mr Waterstreet if the Crown sought to tender it. You accept that I take it?" (18.7.2013 - T.5.13) 85In relation to (v), the Crown submitted that the out of court conversation between his Honour and the legal representatives made it clear that his Honour had not earlier prejudged the issue. 86In relation to (vi), the Crown did not accept that bail was granted without the applicant making any application. The Crown referred to the evidence of Dr Roberts about a place being available at the Sydney Clinic if the applicant were released. Implicit in that evidence was an intention to apply for bail. Having heard that evidence, his Honour simply pre-empted any application for bail by accepting its accuracy and granting bail. The Crown submitted that this was yet another indication that his Honour was carefully considering the evidence as it emerged and had not prejudged the matter. 87In relation to (vii), the Crown submitted that there was a live issue concerning the applicant's depression, his decision to take himself off Zoloft and his use of ice and heroin in the days and hours preceding the offence. The interrelation of those matters formed an important part of the defence case that his Honour should find exceptional circumstances and that there was a causal nexus between the applicant's depression and his participation in the offence. 88The Crown submitted that in those circumstances, given the importance of the issue, his Honour was entitled to extensively cross-examine the applicant about his drug taking before the offence. 89In relation to (viii), the Crown submitted that it had never conceded the appropriateness of an ICO. The Crown submitted that the possibility of a substantial custodial sentence remained a real option in the proceedings and there had been a decision by the applicant's legal advisors not to address that issue, rather than them being misled by anything which his Honour said. The Crown submitted that the applicant was not denied any opportunity to put his case. The Crown submitted that the sentence proceedings were extensive and protracted and the submissions, both written and oral, by the applicant went for significantly longer and were at significantly greater length than those put forward by the Crown. The Crown submitted that applicant's counsel exhausted all the arguments which could be put in the applicant's defence. Nothing was left unsaid and nothing more could have been added. Consideration Ground 1 90At the hearing of this application for leave to appeal against sentence, senior counsel for the applicant was asked whether he wished to challenge the factual findings by the sentencing judge, or whether if the appeal were successful, he wished this Court to re-sentence the applicant on the basis of those findings. Senior counsel for the applicant was not prepared to accept those findings on a re-sentencing of the applicant. 91These sentence proceedings were lengthy and included extensive oral evidence including that of the applicant and Dr Roberts. His Honour had the advantage which we lack, of seeing and hearing those witnesses. Given the conclusions which I have reached in relation to Ground 1, I do not see how this Court could re-sentence the applicant without relying upon the findings of fact made by his Honour. If as I have found, the process of fact finding was affected by the matters raised in Ground 1, the only alternative is for the sentence to be quashed and for the sentence proceedings to be remitted to the District Court to be heard by another judge of that Court. Grounds 1(i) and (ii) 92I am not persuaded that these Grounds of Appeal gave rise to any practical disadvantage for the applicant insofar as they relate to whether procedural fairness was observed in these sentence proceedings. While it is undoubtedly correct, as the applicant submitted, that sentence proceedings are adversarial and a judge should not trespass upon the role of the advocates, to the extent that it occurred here, it did not adversely affect the applicant. 93His Honour's comments that he could not make a finding favourable to the applicant in relation to the purchase of the tomahawk unless he heard from the applicant were appropriate in the circumstances. His Honour was merely indicating to the applicant's legal advisors the way in which he was thinking so as to enable them to meet the problem if they so wished. It is true that his Honour's cross-examination of the applicant was vigorous but it did not result in a finding unfavourable to the applicant. 94His Honour's request for the applicant's Custody Management Records is more controversial. A judge in sentencing proceedings should not require production of a particular piece of evidence. He or she can, of course, advise the parties that unless evidence of a certain kind is adduced he or she will or will not be able to make a particular finding. It is then a matter for the parties as to whether they wish to take steps to deal with the issue raised by the court. 95Another way in which courts traditionally deal with such an issue is to inquire of the parties whether evidence of a particular kind is going to be tendered or relied upon thereby indicating at the very least that the judge regards such evidence as being of importance, but leaving it to the parties as to whether or not they adduce the evidence. 96To require the production of evidence, as his Honour did in this case, is unusual and in my opinion, does cross the boundary identified by Simpson J in Madden v R in that the judge in such circumstances is clearly trespassing upon the role of the advocates. Such an approach should be disapproved by this Court. 97In this case, however, there was no practical detriment suffered by the applicant in that the evidence when produced did him no harm. Grounds 1 (iii) and (iv) 98These grounds give rise to more serious issues. The revocation of the applicant's bail at the conclusion of proceedings on 28 June clearly involved a denial of procedural fairness insofar as the applicant was concerned. That denial of procedural fairness involved matters of bias and procedure. Insofar as apprehended bias is concerned, an independent observer would undoubtedly form the opinion that at that point in time his Honour had prejudged the proceedings at least to the extent of concluding that a custodial sentence should be imposed. The basis for the forming of such an opinion was that the applicant had been on bail for 14 months, the evidence was substantially incomplete, no application to revoke bail had been made by the Crown - on the contrary, the Crown did not oppose bail being granted - and no opportunity was given to counsel for the application to make submissions. 99There was procedural unfairness in that it was clear that his Honour had not read the extensive written submissions which had been placed before him on behalf of the applicant and because he did not give an opportunity to counsel for the applicant to make oral submissions. The transcript makes it clear that the attempt by counsel to do so was peremptorily cut off. 100Although, as the Crown correctly points out, the revocation of bail on this occasion did not produce any practical disadvantage for the sentencing outcome, the way in which it was dealt with was unsatisfactory and it is appropriate that this Court indicates its disapproval. 101Similar comments can be made in relation to the application for disqualification on 18 July. While his Honour addressed in the course of argument the complaints concerning his cross-examination of the applicant and his requirement that the Crown obtain and tender the applicant's Custody Management Records, he did not address the complaint related to the revocation of bail. That unsatisfactory state of affairs was exacerbated by his Honour's failure to provide reasons at that point in time, or at least before the sentence proceedings resumed, as to why he refused to disqualify himself. That is not to say that his Honour should have disqualified himself but the failure to give reasons would have increased the perception of the applicant and his legal advisors that the requirements of procedural fairness were not being observed. 102As with Grounds (i) and (ii), however, despite the unsatisfactory nature of what had occurred up until that point in time there was no practical disadvantage which adversely affected the outcome of the sentence proceedings. If these were the only problems in the sentence proceedings, although they clearly involved irregularities, it would be difficult for the applicant to successfully argue that a miscarriage of justice had occurred in relation to the sentence imposed on him. Grounds 1(v), (vi) and (viii) 103The out of court meeting between his Honour and the legal representatives of the parties was not only irregular, it should not have occurred. Lest there be any misunderstanding, this Court strongly disapproves of any such discussions, be they in the course of a trial or in sentence proceedings. This is particularly so if they are initiated by the judge. The observations in R v Foster remain as valid today as when they were made. 104Although the recollections of the legal advisors, as set out in their affidavits, are not identical, three significant aspects of the meeting are clear: (i) It was initiated by his Honour. (ii) There was a clear statement by his Honour that he did not think the applicant should receive a custodial sentence. (iii) His Honour was concerned about a Crown appeal if he did not impose a custodial sentence and was trying to elicit some assurance from the Crown representative that no appeal would be brought. 105The attempt to bring pressure on the Crown representative in this way was quite inappropriate, should not have happened and is strongly disapproved by this Court. Leaving that aspect aside, when taken with his Honour's express desire not to impose a custodial sentence on the applicant, it provides a firm basis for the applicant's primary complaint that the sentencing proceedings involved procedural unfairness insofar as he was concerned, resulting in the sentence ultimately imposed giving rise to a miscarriage of justice. 106In comparatively recent times, a substantial body of jurisprudence has developed in relation to the issue of procedural fairness in sentence proceedings. The first of these cases was Baroudi v Regina [2007] NSWCCA 48. Price J (with whom Sully and Howie JJ agreed) gave the leading judgment. 107The factual background was that in the course of submissions a concession was made by the Crown in relation to the length of the non-parole period. The applicant asserted that the conduct of the judge during submissions on sentence suggested strongly that he intended to act upon that concession. However, in his remarks on sentence some time later, the judge did not refer to the Crown's concession and imposed a non-parole period 12 months longer than that which was indicated in the concession. It was common ground that the submissions of counsel for the applicant were confined by his understanding that the judge had accepted the Crown's concession. 108In giving his reasons, Price J referred to the observation of Kirby P in Parker v DPP (1992) 28 NSWLR 282 at 296 where he said: "It used to be said that "silence" in a judge was "a counsel of perfection": see The Queen v Watson Ex parte Armstrong (1976) 136 CLR 248 at 294. However, at least in the case of a trial judge sitting without a jury that view has now been disapproved by the High Court of Australia: see Vakauta v Kelly (1989) 167 CLR 568 at 571. Respectfully, I strongly endorse the view there expressed. Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view." 109Price J set out his conclusion on this issue as follows: "33 In the present case, it was open to the Judge to indicate that either his views were tentative or that he neither accepted nor rejected the Crown concession. Such an indication would have afforded counsel the opportunity to dissuade the Judge from imposing a lengthier sentence. With respect to his Honour, his inadvertent failure to do so denied the applicant procedural fairness." 110A similar situation arose in Button v R [2010] NSWCCA 264. In the course of submissions, the judge said that a head sentence needed to be "somewhere between 2½ and 3 years". That was followed by a comment to the effect that given the applicant's status as a first time offender and his strong prospects of rehabilitation "release after one year in gaol and perhaps 18 months or 2 years on parole" would be appropriate. There were further exchanges along the same lines. At the conclusion of submissions, the judge said that he would reserve but that "the effect of it will be I intend to release him within a year of his going into custody .... and there will be supervised parole but probably for between 18 months and 2 years". Ultimately the sentence imposed was one of 3 years with a non-parole period of 18 months. 111The leading judgment was given by Latham J (with whom Simpson and Kirby JJ agreed). Her Honour said: "14 At the heart of the denial of procedural fairness claimed in this appeal is the absence of an opportunity to be heard further in relation to a matter of penalty, where the applicant relied upon a representation by the Judge that a particular sentence was to be imposed, and the Judge departed from that representation without notice to the applicant. 15 Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [35] and [37] ; (2003) 214 CLR 1 at 14 :- "But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation [13]. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed. ... Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 16 There are essentially two explanations for the Judge's departure from the representation that he made in the course of submissions. One is that, in the intervening 11 days in the course of a busy country sittings, without the benefit of a transcript, his Honour had simply forgotten the details of the exchange with counsel. The other is that his Honour arrived at a different sentence after further consideration of the matter. If the latter is the explanation, one would have expected some reference to the reason for the revision, either in the remarks on sentence or by way of a further conversation with counsel, before delivery of sentence. Had that occurred, this Court could not be confident that further submissions from the applicant's counsel would not have persuaded the Judge to reinstate his previous representation. 17 If the former is the explanation, it would be surprising if a reminder from the applicant's legal representative of the Judge's earlier proposed sentence would not have prompted the Judge to revise the sentence. 18 It is not necessary to determine what the explanation is. In either case, the applicant has demonstrated a "practical injustice". The Judge went beyond a mere indication of sentence and announced the sentence he was going to impose. The applicant is entitled to receive the sentence that was accepted by the Judge and the parties as an appropriate sentence in all the circumstances. There is no suggestion from the Crown in this Court that such a sentence is manifestly inadequate." 112The next in the sequence of cases is Weir v Regina [2011] NSWCCA 123. There the Crown conceded in submissions that on the basis of a psychiatric report the sentencing judge was entitled to mitigate the penalty which he would otherwise have imposed by reason of the applicant's mental illness. The Crown also accepted that it was open to the judge to reduce the moral culpability of the applicant by reason of that mental illness. In an exchange with counsel for the applicant the judge expressed a "tentative view" that the absolute minimum sentence would have to include imprisonment with an 18 month non-parole period and a balance of term of 18 months. Shortly thereafter, the judge said "Not binding myself to that actual sentence, but considering it highly likely that would be the sentence that I would impose ... Would you like to discuss that with your client"? After discussing the matter with his client, no further submissions were made by counsel for the applicant. The sentence ultimately imposed was imprisonment with a non-parole period of 1 year and 6 months with a balance of term of 2 years and 6 months. 113The principal judgment was that of Garling J (with whom Macfarlan JA and Johnson J agreed). His Honour set out the relevant legal principles as follows: "64 It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264. 65 The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose. 66 The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37]. 67 One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18]." 114Garling J found procedural unfairness and set out his reasoning: "75 King DCJ imposed a lengthier sentence on the applicant than that which he had indicated he was minded to do. True it is that he had used the word "tentative" when he first expressed his view. But this was quickly followed by the expression with respect to the sentence "considering it highly likely that that would be the sentence that I would impose ". It was then followed by his giving the applicant's lawyer the opportunity of having a conference with the applicant, specifically to obtain instructions about what the judge had said. 76 It is clear that the applicant's lawyer, having taken express instructions from the applicant during an adjournment, granted by King DCJ for that purpose, declined to make any further submissions for his client on sentence. He accepted, in short, that what the sentencing judge had indicated would be an appropriate exercise of the discretion of the sentencing judge. ... 78 ... there has been a practical injustice and substantial unfairness in at least two respects. First, the applicant has received a longer sentence of imprisonment. True it is that the difference in what was indicated and what was imposed affected only the period that the applicant would be on parole. But this is nevertheless part of a sentence of imprisonment. The applicant during that period is constantly at risk of being returned to imprisonment if a breach of his parole occurs. It may take some time for that breach to be then dealt with by the State Parole Authority and the applicant's liberty will be lost during that period. This is not a matter of triviality. 79 Secondly, if a sentence of imprisonment is of 3 years or less, then the offender is automatically released on parole at the expiry of the non-parole period determined by the sentencing judge: s 50 Crimes (Sentencing Procedure) Act. The trigger for the release is an order of the sentencing judge. If a sentence of imprisonment is longer than 3 years, the date for release on parole is determined by the State Parole Authority. Again, that difference in mechanism for release is not a trivial one." 115The same issue arose in Ng v R [2011] NSWCCA 227. The basis for complaint in that case was that the sentencing judge failed to warn those acting for the applicant that he proposed to impose a sentence longer than that indicated during the proceedings on sentence. In the course of the sentence proceedings, the judge proposed a starting point for the sentence of 30 years and said on a number of occasions that he would make no findings adverse to the applicant by comparison with his co-offender. The total effective term of imprisonment imposed on the applicant was imprisonment for 37 years with a non-parole period of 27 years and 9 months. When imposing the sentence, the sentencing judge made a number of adverse findings against the applicant by comparison with his co-offender. 116In relation to the ground of appeal raising procedural fairness, the Court (Bathurst CJ; James and Johnson JJ) said: "41 This Court has observed that it will not normally find an error of principle from interchanges between the Bench and counsel, since judicial views expressed during submissions do not necessarily reflect a considered decision: R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475 [32]. It is the judgment of the Court which ought be considered for this purpose, and not exchanges between the Bench and counsel during the course of submissions. 42 Of course, the Applicant does not seek to rely here upon exchanges during submissions to demonstrate an erroneous view of law or fact on the part of the sentencing Judge. Rather, the Applicant submits that the course of events demonstrates a denial of procedural fairness to the Applicant." 117The Court, having set out with approval the summary of relevant principles provided by Garling J in Weir v R, stated its conclusions: "44 It is, of course, necessary to read fairly the entirety of the sentencing transcript and the remarks on sentence, for the purpose of determining whether practical injustice has been demonstrated in this case. 45 It is apparent that his Honour articulated to counsel the 30-year starting point, utilised in sentencing Lo, as a prima facie starting point for the sentencing of the Applicant for murder. Soon after the jury had returned verdicts, his Honour stated this approach. His Honour's later comments reinforced this construction and understanding. 46 His Honour expressed this view as being subject to any submissions from the Crown. The submissions of the Crown Prosecutor did not contend for a different conclusion. In fact, the Crown submitted that "the sentence should be the same". 47 The Applicant's trial counsel approached the issue of sentence, as a matter of practical reality, upon the basis that an upper limit of 30 years constituted the starting point for the murder count, subject to any reduction flowing from acceptance of the Applicant's submissions. In circumstances where the Crown effectively endorsed the sentencing Judge's approach, it is understandable that the Applicant's counsel did not seek to address further on that issue. 48 We are satisfied that there has been a practical injustice, and substantial unfairness to the Applicant in this case in at least two respects. 49 Firstly, the Applicant received a longer sentence of imprisonment on the murder count than that which had been identified clearly by the sentencing Judge in the course of submissions, without any indication from his Honour that his view had altered in this respect, accompanied by an opportunity to make further submissions on the issue. 50 Secondly, the finding that the Applicant was "a markedly more dangerous man" than Lo (as an apparent basis for moving upwards from the 30-year starting point) had not emanated from any submission from the Crown nor from any exposure of his Honour's provisional thought processes during the sentencing hearing. To the extent that the question of dangerousness was referred to at all in submissions, his Honour had said "There is no reason to think he is more dangerous than the acts which he has already committed would demonstrate or no reason to think that there is any psychological problem which mitigates his responsibility"." 118Most recently the same issue arose in Tran v Regina [2014] NSWCCA 85. In the course of sentence submissions in that case, the sentencing judge indicated that his assessment of the range of objective seriousness of the offence was middle of the range. Both the Crown and counsel for the applicant agreed with that assessment. Subsequently, in his remarks on sentence the sentencing judge assessed the objective seriousness of the offence at "well above the middle of the range of seriousness for such offences". 119On the hearing of the appeal, the Crown accepted that unfairness did arise in the circumstances, being a denial of the opportunity for senior counsel for the applicant to make additional submissions to the sentencing judge in opposing a sentence greater than that which had been indicated. Hall J (with whom R A Hulme and Davies JJ agreed) found that the concession by the Crown had been properly made. 120Applying those principles to the facts of this case, the overwhelming conclusion is that procedural unfairness has occurred. The exchanges in court on 19 July and 9 September, together with the out of court communication between his Honour and the legal representatives on the afternoon of 19 July, made it clear that the sentence under consideration by his Honour ranged from a non-custodial sentence at one end of the spectrum to something more but not greatly more than imprisonment for 2 years at the other. There was no mention by his Honour, or by the parties, of a head sentence of 6 years or anything like it. On the contrary, the tone of the submissions was consistent with the out of court discussion. The Crown was clearly expecting a non-custodial sentence which explains his request at the end of the proceedings that his Honour expedite the production of a transcript of his remarks on sentence. 121The practical injustice is clear in at least two respects. The applicant received a longer sentence than that which had been identified clearly by the sentencing judge in the course of submissions without any indication from his Honour that his opinion had changed in this respect. In addition, he lost the opportunity for his counsel to make further submissions on that issue in particular submissions relating to parity. 122Those considerations are enough to make out that part of the ground of appeal based on a lack of procedural fairness. There is, however, another basis for the success of this ground which arises from the irregular communication between his Honour and the legal representatives on the afternoon of 19 July. The meeting was instigated by his Honour. An impartial observer being aware of that fact and being aware of his Honour's indication that he did not want to gaol the applicant but was concerned that there might be an appeal which he wished to discourage, would have a reasonable apprehension that at that point in time, the sentence proceedings would not be dealt with impartially and not decided according to law. 123The analysis of this part of the appeal is set out in the judgment of Beech-Jones J. I respectfully agree with and adopt both his Honour's analysis and conclusions on the issue of apprehended bias. Ground 1(vii) 124I have concluded that this part of Ground of Appeal 1 has also been made out and that procedural unfairness occurred. 125It needs to be appreciated that the cross-examination of the applicant by his Honour, to which reference is made in the Ground of Appeal, occurred after the applicant had given his evidence in chief and had been cross-examined by the Crown. The cross-examination by his Honour was extensive and occupied over six pages of transcript. It was in relation to a subject which had not been raised on by the Crown, i.e. where the applicant had sourced his illegal drugs and what he had done with them (apart from ingesting them himself) in the period leading up to the offence. These two issues were irrelevant to the offence for which the applicant was being sentenced. 126The unfairness arose because his Honour was not seeking clarification of evidence which had been given, but was trespassing on the function of the advocates. This is particularly so when the subject matter of the questioning was irrelevant to the sentence proceedings. However, the most important element of unfairness arose because his Honour used the responses which he received to his questions as a basis for a finding that the applicant had been supplying drugs to Simon in the weeks leading up to the offence. 127That finding did not emanate from any submission by the Crown nor was it revealed by any exposure of his Honour's provisional thought processes during the sentence hearing. In those circumstances his Honour should, at the very least, have indicated to the applicant's legal advisors the way he was thinking so as to enable them to make submissions to the contrary. Conclusion as to Ground 1 128Ground of Appeal 1 has been made out in the respects which Beech-Jones J and I have identified. The departure from procedural fairness and the apprehension of bias in the sentence proceedings were such that the sentence will have to be quashed and the applicant re-sentenced. This does not mean that the Court will simply substitute a sentence within the range which was indicated during the sentence proceedings. Were this Court to re-sentence it would be necessary to re-exercise the sentencing discretion taking into account all relevant statutory requirements, sentencing principles and most particularly the evidence, in order to formulate its opinion for the purpose of s6(3) of the Criminal Appeal Act 1912 as to whether some lesser sentence was warranted (Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at 287 [19]). 129As indicated at the beginning of the consideration of this ground, that task is significantly complicated because the applicant has challenged important findings of fact by the sentencing judge. Given the protracted nature of the sentence proceedings and that important evidence was given by witnesses which this Court has not seen and assessed, I am not persuaded that this Court is in a position to re-sentence the applicant. It is my opinion that the matter should be remitted to the District Court for the re-hearing of the sentence proceedings be heard by a different judge. 130Because of the conclusion which I have come to in relation to Ground 1, and the need for the sentence proceedings to be reheard, it is neither necessary nor appropriate to deal with the other Grounds of Appeal, lest this Court be thought to be expressing an opinion as to what sentence should be imposed on the applicant. 131On that issue I wish to make it clear that this Court has not formed any opinion as to the appropriate sentence which should be imposed on the applicant in the re-sentence proceedings. It would be quite wrong to assume or infer from anything which I have said that I endorse the range of sentences which were discussed in the exchanges between the advocates and his Honour. It should be clearly understood that the sentencing of the applicant on the re-hearing of the sentence proceedings is entirely a matter for the discretion of the judge to whom the sentence proceedings are allocated. 132I have included in the Orders that the re-hearing take place before a different judge. Once the apprehended bias ground has been made out, it would be inappropriate for the matter to be heard by the same judge. 133The orders which I propose are: (1) The sentence imposed by Maiden DCJ on 13 September 2013 is quashed. (2) The sentence proceedings in relation to the applicant are remitted to the District Court for re-hearing by a different judge. (3) The applicant's bail is continued until further order. 134ROTHMAN J: I have had the advantage of reading, in draft, the judgments of Hoeben CJ at CL and of Beech-Jones J. I agree with the orders proposed and, except as to that which follows, the reasons therefor. 135Ordinarily, an exchange in argument between judicial officer and legal representative will not form the basis of error in sentencing. One of the exceptions to that general proposition is where the exchange is evidence of a denial of procedural fairness or an incorrect approach to the task being undertaken. 136Each of the grounds with which Hoeben CJ at CL has dealt is in one of those categories. 137The sentencing judge enquired as to whether the applicant was to give evidence in circumstances where his Honour made it clear that he would not find in the applicant's favour in the absence of such evidence on the significant issue of whether the weapon (a tomahawk) had been purchased with the robbery in mind. To what did such a finding go? 138It is relevant to a finding of aggravating factors in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act, namely, the existence and extent of planning involved in the offence. It may also be relevant to a mitigating factor in s 21A(3)(b) of the aforesaid Act, but only to the extent that there was no planning involved (which I do not understand was a suggestion). 139If the sentencing judge was seeking to use the factor as an element of aggravation, namely the degree of planning, it was an aspect for which the Crown bore the onus. 140In the particular circumstances of the present sentencing matter before the judge below, there was a fine line between drawing an inference of planning from earlier conduct and the suggestion that it was for the applicant to prove (or satisfy the judge) of this aspect in order that it be considered "favourably" for the applicant. 141In my view, his Honour reversed the onus of proof when his Honour required the applicant to prove he did not purchase the tomahawk for the purpose of the robbery. Nevertheless, no issue was taken at the sentencing hearing and, like both Hoeben CJ at CL and Beech-Jones J, I do not consider an appeal based solely on such an error should, in circumstances where it was not raised, succeed. 142As to the apprehension of bias, I make the following further comments. Apprehension of bias has been described by each of my colleagues. It is unnecessary to repeat the principles so eloquently outlined by them. 143Apprehension of bias does not require "practical disadvantage" in order to succeed as an appeal ground. 144Sentencing is an intuitive process. This Court, on appeal, intervenes only when identifiable or manifest error is disclosed. The fact, if it were the fact, that a sentencing judge, who has engaged in conduct from which apprehended bias has been disclosed, ultimately reaches a conclusion that was open to him or her is not the point. Otherwise, apprehended bias would not exist as a separate ground from actual bias. An applicant would, otherwise, be required to show error in the judgment on account of bias and in so doing would be required to show actual bias or forego the argument. 145Once, according to the principles, there is an apprehension of pre-judgment, there is a denial of procedural fairness and all that follows is both irregular and must be redone. Further, pre-judgment having been disclosed, the sentencing judge could not undertake again the task upon which his Honour previously embarked. 146Denial of procedural fairness includes the proposition that material is considered that has not been adduced in the proceedings, including private communications with the parties. Where, as here, a concluded view has been reached following such a denial, there is an apprehension of pre-judgment that precludes the same judicial officer determining again the matter to be decided. I agree with both other judgments in this latter regard and with the orders proposed. 147BEECH-JONES J: In R v Orchard [2013] NSWCCA 342 at [151] this Court described its role in hearing an appeal against a conviction in the following terms: "This court has no independent function to police judicial manners or enforce standards by which counsel are expected to behave in their exchanges with the presiding judicial officer. A consideration of such matters can only occur as part of the exercise of the court's function to determine whether there was a miscarriage of justice." 148This case is an example of the kind of case envisaged by the second sentence is this extract, with two modifications. The first is that this is not a conviction appeal but a sentence appeal. The relevant inquiry in this case is therefore not whether there was a miscarriage of justice (cf Criminal Appeal Act 1912 (NSW), s 6(1)), but whether there was a relevant error in the exercise of the sentencing discretion. Second, this is not a case of a slip in "judicial manners" but of a departure from the fundamental principle that proceedings are to be conducted in open court (K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501 at [48] to [49]). 149Ground 1 of the Appeal contends that the sentence proceedings "miscarried" by reason of various matters. An assertion that the exercise of a discretion miscarried only posits the question why? The answer must be that one of the established grounds for intervention with the exercise of a discretionary judgment has been made out. Five such bases for intervention are identified in the well known passage from House v R [1936] HCA 40; 55 CLR 499 at 504-505. However none of them are alleged in relation to ground 1. Instead the written submissions asserted there were procedural "irregularities". Of itself that assertion is not sufficient. Ultimately in oral submissions senior counsel for the applicant, Mr Boulten SC, contended that the actions of the sentencing judge gave rise to an apprehension of bias and involved a denial of procedural fairness. Each of those contentions is matter that, if established, could lead to appellant interference. They are matters that need to be considered separately, although that consideration needs to encompass the entirety of the proceedings and not a piecemeal consideration of the events in isolation. For the reasons that follow I consider that each contention is made out and warrants interference by this Court. Ground 1 - Apprehended bias 150I will deal with apprehended bias first. The relevant test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ ("Ebner")). If such an apprehension is established then there is no need to demonstrate that any further "practical unfairness" was occasioned. Thus if the question of apprehended bias is raised after the matter is decided, "[n]o attempt need be made to inquire into the actual thought processes of the judge" (Ebner at [7]). The unfairness is established by the fact that it was apprehended that a partial judge might have decided the matter. 151In my view it is critical to identify what the relevant form of bias is. The High Court's judgment in Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 ("Re JRL") addressed whether the making of an ex parte communication by a family court counsellor to a judge of that court about various contested issues gave rise to an apprehension of bias. Justice Mason (as his Honour then was) commenced his judgment by stating (at 350): "A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides." 152Later Mason J identified what apprehended bias on the part of a judicial officer involves (at 352): "It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way." (emphasis added) 153The concept of "impartially or without prejudice" in this passage means deciding the case according to its legal and factual merits. Thus, in Ebner when outlining the two step approach to determining contentions that a judicial officer displayed apprehended bias, Gleeson CJ, McHugh, Gummow and Hayne JJ stated (at [8]): "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." (emphasis added) 154No doubt in many sentencing hearings the presiding judge makes known their views in open court on the sentencing outcomes they might impose. Consistent with the above statements, without more such a course does not demonstrate apprehended bias. However this case had much more. 155The somewhat erratic course of the sentencing proceedings is set out in the judgment of Hoeben CJ at CL at [28] to [60]. Consistent with the approach noted in [149], the conduct of his Honour on 28 June 2013 in cross-examining the applicant, requesting his custody records, and peremptorily refusing bail is to be considered as the background to the meeting in the Court's alcove at the conclusion of proceedings on 19 July 2013. There is an understandable concern about the sentencing judge's failure on 18 July 2013 or thereafter to provide reasons for refusing to disqualify himself but I do not see how that adds much to any apprehension of bias that might have been held by the fair minded lay observer. 156The respective versions of the meeting in the alcove of the Court after the proceedings concluded on 19 July 2013 are set out in the judgment of Hoeben CJ at CL at [43] to [44]. A consideration of whether there was apprehended bias did not require any difference between the two versions to be resolved by this Court (CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385 at [41] per Meagher JA). In any event, as noted by Hoeben CJ at CL at [104], while there were differences in those versions, three common features of those versions were that the meeting was initiated by his Honour, his Honour clearly indicated that he did not want to send the applicant to gaol, and his Honour was seeking some assurance that there would be no Crown appeal if he did so. 157There are a number of cases in which a complaint of apprehended bias has been made in the context of a private communication by a litigant, a legal practitioner, a witness or a third party to a judicial officer (eg Re JRL, and see Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 4th ed, 2009) at [9.175ff]). This case involves the representatives of both parties communicating with the judicial officer in private. Clearly not all private exchanges with a judge in the presence of the legal representatives of both parties that relate to a case are inappropriate, much less give rise to an apprehension of bias. However, this exchange canvassed the details and the outcome of the case. In such circumstances, the hypothetical fair minded lay observer can be taken to be aware that the initiation by the trial judge on 19 July 2013 of a conversation with counsel in the Court alcove which canvassed the imposition of a non-custodial sentence was improper. Further, such an observer would appreciate that it was also improper for his Honour to participate in the placing of some form of pressure on the prosecutor not to appeal any non-custodial sentence that may be imposed. The observer might reasonably conclude that this meeting was the real process by which the sentence was being determined by the sentencing judge, rather than by the proceedings that were taking place in open court. Properly analysed, it follows that the fair minded observer might reasonably apprehend that the trial judge might be prejudiced or not acting impartially in the sense discussed by Mason J in Re JRL. The fair minded observer might reasonably apprehend that his Honour might not decide the case "on its legal and factual merits". They could reasonably believe that was the reason why, in the secrecy of the alcove, the Director of Public Prosecution's agreement not to appeal any sentence was being sought. 158Two further points should be noted about apprehended bias. First, as the judgment of Hoeben CJ at CL at [46] to [50] makes clear, the subsequent course of the sentencing proceedings could have suggested to a fair minded observer that his Honour was, or at least may have been, proposing to retreat from the indicated course of imposing a non-custodial sentence (but was instead considering a sentence that was perhaps just in excess of two years imprisonment). In Re JRL it was accepted that subsequent disclosure to the parties by the judge that he had received an ex parte disclosure could have the effect of dispelling any apprehension of bias, but that will not always be the case (Re JRL at 351). However, when the nature of the apprehended bias is analysed in the above terms, it is evident that the subsequent course of the sentence proceedings in this case did not dispel the apprehension of bias that arose. While the reasonable observer might have concluded from the statements made during the sentencing proceedings on 9 September 2013 that the sentencing judge was no longer wedded to imposing a non-custodial sentence, nothing that was stated would have dispelled any apprehension they might have held that his Honour might not decide it according to its legal and factual merits. Worse still, they might have simply treated the sentence hearing on 9 September 2013 as a façade bearing in mind the conversation in the alcove. On either view a reasonable apprehension of bias on the part of the sentencing judge is made out. 159Second, there was no submission to the effect that this Court should decline to intervene on the basis of any alleged acquiescence in, or encouragement of, the inappropriate procedure that was adopted on the part of counsel for the applicant who appeared before the sentencing judge. In the absence of such a contention it is not necessary to consider this further. Ground 1 - Hearing rule 160I agree with the finding of Hoeben CJ at CL at [120] to [121]. The principles noted in the cases discussed at [106] to [119] demonstrate that the applicant was also denied a fair hearing. Remaining grounds of appeal and relief 161The remaining grounds of appeal all concern aspects of his Honour's sentencing judgment. However, the applicant's success on ground 1 warrants the sentencing judgement being set aside. The consequence is that this Court cannot proceed to re-sentence. In addition to the agreed facts, a number of other factual findings are sought which in part involve an assessment of the evidence given by the applicant and Dr Roberts (see O'Neil-Shaw v R [2010] NSWCCA 42 ("O'Neil-Shaw") at [32] per Basten JA). Accordingly I agree with Hoeben CJ at CL that the proceedings will have to be set aside and re-determined afresh. Section 12(2) of the Criminal Appeal Act authorises that course (O'Neil-Shaw id). Further, in light of the Court's findings, I consider that the Court should direct that they not be heard by the same judge (O'Neil-Shaw at [37] per Basten JA). 162I agree with the orders proposed by Hoeben CJ at CL. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2014