District Court New South Wales Medium Neutral Citation: Regina v Roxanne Carmella Brincat [2016] NSWDC 100 Hearing dates: 2 June 2016 Date of orders: 09 June 2016 Decision date: 09 June 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: (1) The application for me to recuse myself is refused Catchwords: CRIMINAL LAW – sentence - break and enter – aggravated – serious indictable offence – steal property from dwelling PROCEDURAL LAW – application to disqualify – apprehended bias – test – principles of law – "fair minded lay observer" PRACTICE – correspondence with Judge's chambers – correspondence with Judge's staff Legislation Cited: Crimes Act 1900 ss 113(2), 148 Crimes (Sentence Procedure) Act 1999 ss 5, 11 Uniform Solicitors Conduct Rules 2015 r22.5 Uniform Barristers Conduct Rules 2015 r 54 Cases Cited: Tugrul v Tarrants Financial Consultants Pty Ltd [2013] NSWSC 1971 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 British American Tobacco Australia Services Ltd v Laurie (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Helow v Home Secretary [2008] 1 WLR 2416 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Vakauta v Kelly (1989) 167 CLR 568 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Isbester v Knox City Council (2015) 89 ALJR 609 Bechara v R [2011] NSWCCA 67 R v Cartwright (1987) 17 NSWLR 243 Category: Procedural and other rulings Parties: Roxanne Carmella Brincat (Applicant) Regina (Respondent) Representation: Counsel: Mr S Boland (Applicant) Solicitors: Blair Criminal Lawyers (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/00280963 Judgment 1. Roxanne Carmella Brincat (the offender) appears for sentence to one count of aggravated break and enter with intent to commit a serious indictable offence contrary to section 113(2) Crimes Act 1900 and one count of steal property from a dwelling contrary to section 148 Crimes Act 1900. 2. The sentence proceedings are listed before me because I am part heard in the sentence proceedings of the co-offender Diana Bazzi. 3. The offender makes an application that I disqualify myself from hearing the sentence proceedings on the ground of apprehended bias. The test to be applied 1. The legal test is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343 [6], where Gleeson CJ, McHugh, Gummow and Hayne JJ stated: … a judge is disqualified if 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. 1. There is a distinction between "an incautious remark or expression of a tentative opinion" and the kind of comment that would enliven a judge's duty to refrain from hearing a matter: British American Tobacco Australia Services Ltd v Laurie (2000) 205 CLR 337 at [140] per Heydon, Keifel and Bell JJ. The fair-minded observer 1. The fair-minded observer does not make snap judgements: Johnson v Johnson (2000) 201 CLR 488 at 494 [17]. He or she is taken to be reasonable: Johnson at [12]. He or she knows commonplace things and is neither complacent, nor unduly sensitive or suspicious: Johnson at [53]; Helow v Home Secretary [2008] 1 WLR 2416 at [2], [14] and [39]. Knowledge of all of the circumstances of the case must be attributed to the fair-minded observer: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87-8 and 95. 2. Where the decision maker is a judicial officer the fair-minded observer will have regard to the fact that a judicial officer's training, tradition and oath equip the officer with the ability to discard the irrelevant, immaterial and the prejudicial: Johnson at [12], citing Vakauta v Kelly in the NSW Court of Appeal adopted by the High Court in (1989) 167 CLR 568 at 584-5. 3. In Helow, Lord Hope of Craigshead said at [2]-[3]: the Observer who is fair-minded is the sort of person who always reserves judgement on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious… Her approach must not be confused with that of the person who has brought the complaint.… The assumptions that the complainer makes are not to be attributed to the Observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses… 1. Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgement. The distinction between predisposition and prejudgment 1. The rule against bias, actual or apprehended, is directed to prejudgement incapable of being altered by evidence or argument. It is not directed to predisposition capable of being swayed by evidence or argument. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71]-[72], Gleeson CJ and Gummow J said: Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether that a decision-makers mind is blank; it is whether it is open to persuasion… Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. 1. The High Court has accepted that a judge should not sit silently throughout proceedings with the result that the judge's views about the issues, problems and technical difficulties involved in the case remain unknown by the parties until they emerged as final conclusions in the judgment: Vakuata v Kelly at 635. The steps involved in applying the test 1. In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ at [8] postulated two steps as follows: First, it requires the identification of what is said might lead a [decision-maker] 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 [decision-maker] 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. 1. The last sentence of that passage suggests that there is an additional third step. In Isbester v Knox City Council (2015) 89 ALJR 609 at [59] Gageler J set out the three steps as follows: Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as a result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way. 1. In Minister for Immigration and Multicultural Affairs v Jia Legeng at [185] Hayne J set out a related but differently expressed three-step analysis, as follows: Saying that a decision maker has prejudiced or will prejudice an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that a decision maker will apply that opinion to the matter in issue. Thirdly, there is the contention that the decision maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is an assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case. Factual background 1. The offences for which the offender is to be sentenced were committed on 20 September 2014. 2. The offender and Ms Bazzi were arrested on 24 September 2014 and refused bail. 3. Ms Bazzi was on parole. The State Parole Authority revoked parole and she served the balance of parole being 3 months and 23 days. She was eligible for release on 15 January 2015. She was granted bail on 15 February 2015 to allow her to be admitted to the residential rehabilitation program conducted by Odyssey House. 4. On 13 October 2014 the offender was sentenced to a term of imprisonment of 9 months with a non-parole period of 6 months for a second offence of drive whilst disqualified. On 7 May 2015 the offender was sentenced to an aggregate term of imprisonment of 12 months with a non-parole period of 7 months to date from 12 February 2015 for a string of dishonesty offences. The last non-parole period expired on 11 September 2015; she was bail refused on these matters after that time. 5. On 2 October 2015 I adjourned the sentence proceedings of the co-offender to 2 June 2016 for sentence. I continued her bail on condition that she continue to participate in the residential rehabilitation program offered by Odyssey House, pursuant to section 11 Crimes (Sentencing Procedure) Act 1999. 6. The offender was committed for trial in the District Court on the matters before the Court and they were listed for trial to commence on 9 November 2015. On the first day of the trial the offender pleaded guilty before Frearson DCJ. 7. On 17 March 2016 the offender's matter was listed for sentence before me. The Crown submitted on that occasion that it would be prudent to adjourn the offender's sentence proceedings to today, so that the matters could be heard together in accordance with the line of authority in Bechara v R [2011] NSWCCA 67. I granted the Crown's application and adjourned both matters to 2 June 2016 to be dealt with at the same time. I referred the offender to another Judge to hear a bail application that the offender wanted to make. The offender was granted bail on that day. The adjournment application 1. In the course of that adjournment application, it was submitted on behalf of the offender that she would be prejudiced if the matter was adjourned because she was in custody and it would be unfair for her to remain in custody to see if Ms Bazzi's rehabilitation in the community had been successful. 2. In support of that submission counsel for the offender tendered the JIRS sentencing statstics and submitted that 39% of offenders did not go to gaol for the offence before the Court. The following exchange occurred: HIS HONOUR: That does not apply to your client, clearly. BOLAND: Your Honour… HIS HONOUR: You can't be serious. 1. In my decision to adjourn the sentence proceedings I said, after indicating that totality was an important factor in sentencing this particular offender: The co-offender's sentence is listed on 2 June 2016, which is a little over two months from today. Taking into account the seriousness of the two offences, to which the offender has pleaded guilty, and in particular the number of matters on the Form 1, I do not think that the offender will be disadvantaged in relation to being kept in custody until 2 June 2016 because I expect that any sentence imposed would involve a minimum term of at least that long. I say only at least because I am not aware of the full circumstances presented on behalf of this offender and I have not prejudged the matter in any way. But it seems to me to be unlikely in the extreme that any penalty imposed will not involve at least a non-parole period until 2 June 2016. The e-mail correspondence 1. On 21 May 2016 the solicitor for the offender sent an email to my Associate that was copied to Ms Ward solicitor of the DPP and to counsel for the offender in the following terms: We have carriage of the sentence proceedings of Roxanne Brincat, listed in the Sydney District Court on 2 June 2016. Her co-accused Ms Bazzi, who is presently on a section 11 bond, is also listed for sentence on that day. On the previous occasion (17 March 2016), Ms Brincat's matter was listed for sentence. The Crown made an adjournment application which was granted by his Honour. During the course of that application his Honour made certain observations in relation to Ms Brincat's likely outcome on sentence. Given what passed in that application, his Honour considered it appropriate that he recuse himself for Ms Brincat's subsequent bail application (after he had granted the adjournment application). As it happened, Judge Zahra granted Ms Brincat conditional bail on that day. She presently remains on bail. We would be grateful if you could please advise whether his Honour proposes to maintain carriage of Ms Brincat's sentence proceedings. If his Honour does intend to retain carriage of Ms Brincat's sentence we would kindly ask that the matter be listed before his Honour this Wednesday 25 May 2016 in order for an application be made. 1. On 23 May 2016 my Associate replied to the solicitor in the following terms: It is unclear from your email if the DPP consents to you contacting me. His Honour has asked me not to respond to your email until that matter is clarified. 1. On 30 May 2016 the solicitor for the offender sent an email to my Associate that was copied to Ms Ward solicitor of the DPP and to counsel for the offender in the following terms: I note that I have attempted today to contact Ms Ward of the DPP to notify her and seek her consent for this communication. I have not been able to reach her however she is CC'd into this communication and I understand from previous communication with her that she takes no issue with this form of communication to his Honour. As of lunchtime today, I was notified by Mr Boland of Counsel that The CCA Registrar has listed an unrelated but urgent 5F interlocutory appeal hearing in another matter that Mr Boland is briefed in on this Thursday 2 June 2016. I am informed that the events that gave rise to this appeal only occurred last Wednesday 25 May 2016. This appeal clashes with Ms Brincat's sentencing hearing. As was foreshadowed previously, an application for his Honour to disqualify himself from these proceedings will be filled imminently. These are difficult applications to make, and I dislike making them. It is my every intention and effort to finalise a notice of motion and affidavit in support of this application before the close of business today. We suggest that in these circumstances It would be especially expedient and appropriate for Mr Boland to remain in the matter. This is because he has been in the matter from its infancy, and importantly he was also counsel present on 17 March 2016—the proceedings that will be the evidentiary subject of the disqualification application. I am aware Mr Boland is available on June: 9,16,23,30 July: 1, 14,15,21,28 and August: 4,5,11,18,19,25. If none of those dates are suitable please let me know and I can make further enquiries. In these circumstances would his Honour be amenable to adjourning this matter to one of the above nominated dates? If I can provide further information or assistance please contact me anytime on 0433 462 453. 1. Later that day the solicitor for the offender sent another email to my Associate that was copied to Ms Ward solicitor of the DPP and to counsel for the offender in the following terms: As mentioned in my email of earlier today, please find attached Notice of Motion, Supporting Affidavit and Annexures with regard to the application for HH to recuse himself from Ms Brincat's sentence. These documents will be filed with your registry tomorrow. I note that the annexures are an unsigned copy as the file size for the scan version is very large. They are a true copy of the annexures that will be signed and filed tomorrow. 1. On 31 May 2016 my Associate replied to the solicitor in the following terms: Any application or Notice of Motion for His Honour to disqualify himself from these proceedings can be made on 2 June before His Honour. I note receipt of the Notice of Motion and supporting material. 1. On 31 May 2016 the solicitor for the offender sent an email to my Associate that was copied to Ms Ward solicitor of the DPP and to counsel for the offender in the following terms: Thank you for your email. Further to the counsel availability issues that I raised via email yesterday, I have today ascertained that Mr Boland's urgent and unrelated 5F appeal at the CCA is listed for 10:00 and is the only matter to be heard. I have spoken in person today to Ms Ward, DPP solicitor with carriage, and she informed me that the Crown would not be opposed to a later marking on Thursday. In these circumstances can I please kindly enquire if his honour would be minded to list Ms Brincat's matter at 12.00PM or 2.00PM on 2 June 2016 1. On 1 June 2016 my Associate replied to the solicitor in the following terms: His Honour will have Ms Brincat's matter listed at 12pm. In the event that Mr Boland is unavailable at that time, the matter will proceed. The matters were listed on 17 March 2016 and should be concluded as expeditiously as possible. His Honour intends to proceed with the hearing of Ms Bazzi's matter at 10am, subject to the views of the DPP and the representatives of Ms Bazzi. The offender's arguments 1. The offender's arguments can be summarised as follows. 2. First, that my exchange with counsel about the offender not being dealt with by way of a full-time custodial sentence amounted to a prejudgment of the application of section 5 Crimes Sentencing Procedure Act 1999 to the case. 3. Second, that my judgment on the adjournment application stated that offender would not have served sufficient time in custody on 2 June 2016. 4. Third, that my decision to recuse myself from hearing the bail application was determinative of the present application. 5. Fourth, the email correspondence between the solicitor for the offender and my Associate was demonstrative of my unwillingness to be fair to the offender and was demonstrative that I had pre-judged this application and had no intention of recusing myself. Consideration 1. The decision to adjourn the sentence proceedings to 2 June 2016 to have the matters proceed together was based on ordinary and sound principles. 2. That decision was based on the evidence tendered and the submissions made on behalf of the offender by her counsel on the application. The subjective material was limited to two letters relating to the care of the offender's child by her father. Whilst counsel referred to a psychologist's report it was not tendered on the application. 3. I was taken to the offender's record. The record demonstrated that the offender had been sentenced to two terms of imprisonment following her arrest on these charges. The first term of imprisonment of 9 months with a 6 month non-parole period for an offence of drive whilst disqualified dated from 13 October 2014, about 3 weeks after her arrest. The second was an aggregate term of imprisonment of 12 months with a non-parole period of 7 months to date from 12 February 2015. I say a string of offences because it is difficult to know the precise number from looking at the record. The string comprised of approximately 20 offences, most of which were dishonestly obtain property by deception. I was unaware of the facts of these offences. Mr Boland did not tell me by way of submission what the facts of those offences were or what if anything he was instructed about them. The second term was partly accumulated on the first term by 4 months. 4. The first term of imprisonment was confirmed on appeal. The offender did not appeal against the second term of imprisonment. 5. Based on the material before the Court on 17 March 2016 and the 6 months and 23 days that the offender had spent in custody in relation to these offences only, it was inevitable that the offender would receive a full-time custodial sentence for these offences. A suspended sentence or an Intensive Corrections Order (ICO) would have been a more onerous sentence than dealing with the matter by way of a custodial sentence. 6. The matters before the Court were more serious than the matters for which she had received the terms of imprisonment. On the material before the Court, it could not have been reasonably submitted that the offender should receive a good behaviour bond or community service, because those outcomes would not have reflected the objective seriousness of the offences committed and either of those results would have resulted in an injustice to the offender. 7. The fair-minded lay observer would have viewed my exchange with counsel on the statistics as the expression of an incautious remark or the expression of a tentative view. After making the remark I listened to the other submissions made on behalf of the offender. They did not persuade me from the view that the offender would not be prejudiced by the adjournment. 8. The offender's argument on this application did not expose the basis for the submission that my decision on the adjournment application could lead the fair-minded lay observer to conclude that on 2 June 2016: 1. The offender would not have spent sufficient time in custody; 2. I would send her back to gaol for any period, if she was granted bail on 17 March 2016; 3. That I would not assess the case on its merits on 2 June 2016. 1. Such exposition is required by reference to the authorities quoted in [11]-[13] above. 2. Rather, the offender's submissions relied on the assertion that the matters in [44(a)-(c)] were clearly established. 3. In deciding the adjournment application I was invited by the offender to find that she was prejudiced, because she was in custody when Ms Bazzi was in residential rehabilitation. I was invited by counsel for the offender to make a comparison between the offender and Ms Bazzi, whom counsel described as 'at liberty in the community'. That was not an accurate comparison. The correct legal position was that Ms Bazzi had been required to reside at Odyssey House and to participate in the program offered there for a period in excess of 1 year. The conditions at Odyssey House are known to the Court to be quasi-custodial and the law is that in those circumstances a form of punishment has been imposed on Ms Bazzi and she is likely to be entitled to a significant discount on penalty: R v Cartwright (1987) 17 NSWLR 243. 4. On the basis of the limited subjective material put forward on the adjournment application, I decided that the offender was not prejudiced. 5. Objectively viewed, my judgment on the adjournment application was only capable of being taken as an indication that had I dealt with the sentence on 17 March 2016 that the offender would have been required to serve a minimum term expiring on or after 2 June 2016 on what I knew at that point in time. That indication was qualified in 2 important respects, first that I was unaware of the offender's subjective circumstances and second that I had not prejudged the matter. 6. On the basis of that indication I believed that it would be inaappropriate for me to hear a bail application and I referred that application to another judge. That was the fair approach to the offender's bail application. But my decision on the adjournment application could not be construed as constituting any apprehended bias beyond 2 June 2016 and I would not be dealing with the offender again, based on my own decision until at least that date. 7. I must now sentence the offender on the basis that she is on bail. There is nothing in what I said on 17 March 2016 that could amount to any indication that I would send the offender back to gaol without considering all of the material available at the sentence hearing. 8. In the event that the interpretation relied on by the offender is viable, which I do not believe it to be, then the fair-minded lay observer would be faced with a choice between the two alternatives. The objective interpretation that I have set out is consistent with me exercising my judicial obligations in accordance with the merits of the case and is thereby likely to be preferred by the fair-minded lay observer. 9. Finally, I come to the offender's submissions based on the email correspondence between the solicitor for the offender and my Associate. I will restate what I put on the record during the argument of this application that my Associate had my express authority to send the emails that he did. Those submissions can be rejected for two shortly stated reasons. 10. First, it is clear that the solicitor for the offender did not have the DPP's consent to communicate with my Associate about whether or not I intended to recuse myself from hearing the sentence proceedings. The communication was arguably in breach of rule 22.5 of the Uniform Solicitors' Conduct Rules 2015; a provision that is reflected in rule 54 of the Uniform Barristers Conduct Rules 2015. The submission that, "[I]n the present age, it is, with respect, uncontroversial for parties to email a Judge's Associate, and in so doing 'cc' other parties to the proceedings in the email" is ignorant of the ethical obligations imposed by the professional conduct rules. The rules exist to preserve the impartiality of the judiciary: Tugrul v Tarrants Financial Consultants Pty Ltd [2013] NSWSC 1971. Accordingly, my Associate's response to the solicitor's email was appropriate. 11. Second, the unavailability of counsel is not usually and not in this case an appropriate reason for an adjournment of proceedings. The adjournment of the offender's sentence proceedings to 2 June 2016 was in order to join the matters together. That was ultimately frustrated by counsel's unavailability. It was not suggested in email or in argument that counsel was in any way responsible for the situation. In the circumstances there was ample opportunity for other counsel to be briefed to appear on the application or the sentence proceedings. The offender and her solicitor chose to stay with counsel who was briefed. In any event: 1. the requested accommodation was made for counsel to appear on 2 June 2016; and 2. counsel managed to become free from his commitment in the Court of Criminal Appeal to appear on the application. 1. The order that I make is: 1. The application for me to recuse myself is refused. ********** 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: 09 June 2016