Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Amante v R [2020] NSWCCA 34 Hearing dates: 12 February 2020 Date of orders: 11 March 2020 Decision date: 11 March 2020 Before: Payne JA Beech-Jones J N Adams J Decision: (1) Application for leave to appeal against sentence is granted. (2) The appeal is dismissed. Category: Principal judgment Parties: Michale Amante (Applicant) Regina (Respondent) Representation: Counsel: Mr T Ramrakha (Applicant) E Balodis (Respondent) Solicitors: Legal Aid Commission of NSW (Applicant) NSW Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/106512 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Date of Decision: 01 May 2019 Before: Judge Colefax SC File Number(s): 2018/106512 Judgment 1. PAYNE JA: I agree with N Adams J. 2. BEECH-JONES J: The background to the application is set out in the judgment of N Adams J. I agree with her Honour's conclusions and reasons in relation to ground 2. 3. In relation to ground 1, I agree with N Adams J that the challenge to the finding that fire entering the unit block's roof void "posed a serious structural risk to the integrity of the building" should be addressed by considering the evidence that was said to support it and not by considering whether it was a matter in respect of which the sentencing judge could have taken judicial notice. It suffices to state that judicial notice could never support a finding about the probability of structural damage to a specific building, as opposed to say, the potential for fire to cause structural damage to a building. 4. The material said to support the finding made by the sentencing judge was the agreed facts and the photographs described by N Adams J at [59]. In that regard, it is necessary to say something about the role of this Court in relation to the reception and use of photographic evidence admitted at first instance. The issue has been addressed by the Court of Appeal, most recently in Goode v Angland [2017] NSWCA 311 ("Goode") at [89] to [97] where Beazley P reviewed various decisions of that Court on this topic. Her Honour described those decisions as establishing "principles relating to the reception into evidence and the use that may be made of photographic evidence" (at [89]). Her Honour's review included passages from various decisions that warn of the "care" that needs to be taken in relying on photographic evidence (eg, Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72 at [42]). However, some of the "principles" are expressed in prescriptive terms. Thus, for example, Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130, at [69]-[72] is cited in Goode for the proposition that "photographic evidence could not trump the direct evidence of witnesses that compelled acceptance" (Goode at [93]). Further, in Blacktown City Council v Hocking [2008] NSWCA 144 at [169], Tobias JA stated: "It should be noted that the use by a trial judge of photographs is nothing new. They can, as the authorities to which I have referred confirm, be descriptive of what a witness says he or she saw, being a representation of the witness' knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt [1969] QWN 3 at 6 ["Schmidt"]; Beaton v McDivitt (1985) 13 NSWLR 134 at 142." (emphasis added) ["Beaton"]. 1. Schmidt is an English decision and Beaton was a judgment of Young J (as his Honour then was) sitting at first instance. Neither of them concerned the Evidence Act 1995. In light of its passage, the status of some of the "principles" identified in Goode is open to question. 2. After the Evidence Act was enacted the power of the courts in the judicial hierarchy of this State to enunciate rules concerning the reception and use of evidence was truncated by s 9(1) of the Evidence Act, specifically, they can only do so to the extent that they are enunciating "a principle or rule of common law or equity" and only insofar as the Evidence Act does not provide "otherwise expressly or by necessary intendment". To the extent that the various "principles" discussed in the decisions reviewed in Goode concern the reception into evidence of photographs, then that is clearly a subject for which Chapter 3 of the Evidence Act expressly provides. It is otherwise doubtful that the various prescriptive statements to which I have referred amount to "a principle or rule of common law or equity", because if they were then presumably juries would have to be instructed to apply them, which to date, and for good reason, they have not. Perhaps at most these "principles" might be taken as identifying a possible category of unreliable evidence for the purposes of s 165 of the Evidence Act. At least so far as jury trials are concerned the Courts must observe that provision and not the Court of Appeal statements, to the extent they are inconsistent. In that regard, s 165 preserves to the jury the question of the ultimate weight to be attached to evidence falling within a category that might be considered unreliable. 3. Whatever be the position in the Court of Appeal, absent the application of some particular provision of the Evidence Act, this Court has no authority to specify any rules of its own concerning the reception into evidence of, and the manner of use or weight to be attached to, any category of material by trial courts at first instance, including photographs. The admission of evidence at a criminal trial is governed by the Evidence Act. The use of and weight to be attached to such material is, subject to the provisions of the Evidence Act, for the trier of fact. This Court's role in reviewing the weight that was attached or should have been attached to evidence that is said to support a conviction is (generally) confined to reviewing any conviction to ascertain whether it is "it is unreasonable, or cannot be supported, having regard to the evidence" (Criminal Appeal Act 1912, s 6(1)), including any photographic or video evidence that is tendered. 4. In relation to sentence proceedings, the Evidence Act may or may not apply depending on whether a direction under s 4(2)(a) has been given. As noted by N Adams J (at [55] to [56]), the test to be applied by this Court in considering factual findings made in a sentencing judgment is the subject of some controversy (cf R v O'Donoghue (1988) 34 A Crim R 397; "O'Donoghue"; with Hordern v R [2019] NSWCCA 138 at [20]; "Hordern"). However, nothing in the Criminal Appeal Act expressly or implicitly confers authority on this Court to direct sentencing judges as to the weight they must attach to particular categories of evidence such as photographic evidence, including by doing so in a manner enunciated in the various decisions of the Court of Appeal collated in Goode. All that can be accurately and usefully said is that it depends on the case and it depends on the photograph. In this case, for the reasons given by N Adams J, having regard to the photographs and the agreed facts, the sentencing judge's finding was not "mistaken" (Hordern) and was therefore "open" (O'Donoghue). 5. I agree with the orders proposed by her Honour. 6. N ADAMS J: The applicant seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by Colefax SC DCJ sitting in the Parramatta District Court on 1 May 2019: R v Amante [2019] NSWDC 222. 7. The applicant, whilst under the influence of crystal methamphetamine ("ice") threatened his estranged partner in breach of an apprehended violence order ("AVO") and subsequently set fire to her Department of Housing unit causing significant damage, potential danger and hardship to other residents. 8. The applicant pleaded guilty in the Local Court to one charge of intentionally or recklessly damaging a building by fire contrary to s 195(1)(b) of the Crimes Act 1900 (NSW), charged as a domestic violence offence: s. 12 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalty for such an offence is 10 years imprisonment. The applicant was sentenced to imprisonment for 3 years and 9 months comprising a non-parole period of 2 years to commence on 4 October 2018 and expire on 3 October 2020 with a balance of term of 1 year and 9 months to commence on 4 October 2020 and expire on 3 July 2022. 9. The applicant relies upon two grounds of appeal. Ground 1 contends that the sentencing judge erred in taking "judicial notice" of the fact that the fire in the roof cavity "posed a serious structural risk to the integrity of the building". Ground 2 alleges error in the way in which his Honour dealt with the applicant's mental health issues; in particular in finding that they were "largely untreated and largely unresolved". Facts 1. Agreed Facts were tendered (Exhibit A). His Honour did not recount them verbatim. Rather, he recast them as to style. I do not propose to set his Honour's facts in full; they can be summarised as follows. 2. In January 2018, when the applicant was 42 years of age, he was involved in a "turbulent" domestic relationship with the victim. The victim resided on the top floor of an apartment block owned by the Department of Housing. The applicant briefly resided with her there but as at 6 January 2018 the victim had obtained an apprehended violence order (AVO) against him which included a condition that he not go within 200 metres of her unit. 3. On 6 January 2018, the applicant attended those premises in breach of the AVO, apparently with the consent of the victim. The victim's brother was also at the unit. The three of them had an argument during which time the applicant threatened the victim stating, inter alia, "[i]f the police come, they won't be able to come through, they would have a murder scene". The victim's brother told him to leave and he did. 4. At around 10am the following morning, the applicant returned to the premises. He was seen by one of the residents of the apartment building to be standing next to the window of the victim's unit. The applicant spent the whole day either at or in that home unit. His explanation for this is that he still lived there. The victim was not at home that day. 5. At about 5.30pm, a neighbour saw the applicant pick something up from the ground in an outdoor car park. She attempted to talk to him but he waved her away. 6. From about 6.30pm, a series of text messages passed between the applicant and either the victim or her brother on the brother's mobile telephone. The applicant had destroyed the victim's phone the night before. Some of the messages were directed to the brother and some to the victim. 7. At 8.23pm, a message was sent in these terms whilst the applicant was at the victim's unit: "I'll lite the fire in a minute watch me I'll burn everything Cass!" 1. Twelve minutes after this text message was sent, the same neighbour saw the applicant enter the victim's apartment building and walk up the stairs in the direction of the victim's unit. 2. Five minutes later, the applicant was seen walking back down those stairs. Thirty seconds later, the neighbour heard "a loud boom" and the sound of breaking glass. The neighbour ran to a window and saw grey smoke. Another occupant of the building heard the explosion and saw flames coming from an upstairs unit. The Fire Brigade was contacted. 3. It was an agreed fact that the applicant started a fire in the victim's unit but the Agreed Facts did not disclose how the fire was set. The sentencing judge expressed his displeasure at the lack of expert evidence as to how the fire was started observing: "Somewhat disappointingly for my purposes, the parties chose not to place before the Court in the agreed statement of facts any information about the cause of the fire - other than it was you who set it. There is no material of an expert kind from the Fire Brigade as to whether or not accelerants had been used or anything else about how swiftly the fire, once set, would have taken to take off so as to produce the quantities of smoke and the noise which the witnesses heard. That is a surprising and disappointing omission of what I would view as being important facts for the Court to know in assessing the seriousness of your offending behaviour." 1. His Honour then referred to the applicant's explanation as to how the fire was started and stated that he did not accept it. The applicant's explanation was that he used nail polish remover that he had found in the unit. His evidence was that he ignited it on a bed and lay down on the floor intending to kill himself when the quantity of smoke caused him to panic and run out of the building. His Honour noted that this version was inconsistent with the Agreed Facts (extracted above at [22]). 2. His Honour was unable to make any finding as to the cause of the fire beyond the fact that it was the applicant who caused it. 3. The emergency services attended the unit block and a number of residents were evacuated. His Honour observed this in his sentencing reasons as to how many lives were put at risk: "How many is not revealed in the agreed statement of facts. You have told me today that there are 3 storeys and that there were 12 units. The fire occurred on a Sunday evening at about 8.35. There has been some quibbling today about how many people were threatened by your conduct. Clearly, at least the lives of the 2 neighbours I have referred to were put at risk, as were the lives of the firemen who came." 1. By the time the Fire Brigade arrived, the fire had spread into the "roof void". This was noted in the Agreed Facts and a number of photographs were tendered showing the damage to the roof. His Honour stated the following about this damage to the roof void at [22]: "Although there is no expert evidence before the Court as to the consequences of a fire entering a building's roof void, the Court can take judicial notice that that posed a serious structural risk to the integrity of the building." (Emphasis added.) 1. His Honour went on to make further complaint about the Agreed Facts stating at [23 ]: "The Court has not been given any real detail by the parties as to the damage done to the unit owned by the people of New South Wales and which was made available to the victim through the Department of Housing, beyond being told that, as a consequence of what you did, that unit was uninhabitable. No proper explanation has been given to the Court as to why there was no more detail as to the extent of the damage. Certainly when the Court enquired as to how much it cost to repair, no-one had obtained that information, nor was the Court told for how long this valuable resource was excluded from those who desperately need accommodation in this State." 1. There was evidence before the court that the other residents were excluded from the building until 9 January 2019. His Honour noted there was no evidence as to where these residents stayed in the meantime. His Honour concluded his summary of the facts by observing: "But what you did was to seriously damage valuable property; and you destroyed the limited personal belongings of your former partner who was in a sufficiently parlous financial position to require Housing Commission accommodation." Proceedings on sentence 1. The proceedings on sentence were heard on 26 June 2018 at the Parramatta District Court and his Honour sentenced the applicant on the same day. The Agreed Facts were tendered and became exhibit A and a larger version of the text messages contained therein became exhibit B. 2. The solicitor for the applicant tendered a bundle comprising a psychological report from Mr Jason Borkowski dated 26 April 2019; a psychiatric report from Dr Richard Furst dated 26 November 2018; a mental health discharge and transfer summary from Concord Hospital; the Corrective Services case notes; and testimonials by his sister, a friend Ms Nader and his employer Mr Hadidi. 3. Neither Dr Furst nor Mr Borkowski was required for cross-examination. Given that one of the grounds of appeal concerned his Honour's finding regarding the applicant's mental health it is necessary to briefly summarise their evidence. 4. Both experts set out a similar history regarding the applicant's childhood. The applicant was born in Germany. His family moved to Portugal when he was eight years old and he came to Australia to live when he was 12 years old. His father was violent towards the family members when he was intoxicated. The applicant's brother sexually abused both he and his sister which resulted in the brother leaving the family home. The applicant completed the Higher School Certificate when he was 16 and completed an apprenticeship in motor mechanics. He had a successful business which he lost when his drug use escalated. Apart from working every now and then for his brother, he has not been able to maintain employment since his 20s. The applicant has been married and divorced twice. The first marriage failed due to his drug use. 5. Under the heading "Mental Health History" Mr Borkowski outlined that the applicant first sought mental health treatment after he accumulated "offences and legal sanctions". He was referred to a psychologist but did not actively engage in the counselling sessions. He was subsequently referred to psychological treatment in 2014 after being released from custody and engaged in counselling for approximately six months to deal with his substance abuse and associated psychological problems. He was prescribed antidepressant medication in his early 30s and has taken the medication intermittently but was not always medication compliant. He had remained compliant with taking medication for depression and anxiety since incarcerated. Although he was admitted to Concord Hospital shortly after the index offence experiencing hallucinations, delusions, paranoia and suicidal ideation, he denied any suicidal attempts or acts of self-harm prior to the offence. 6. Under the heading "Substance Use History" Mr Borkowski described how the applicant started using MDMA after separating from his first wife. His usage continued until he realised that the use of MDMA was exacerbating his depression. He subsequently progressed to using a form of amphetamine known as "Base" until he commenced a relationship in his early 30s. He ceased taking drugs for approximately one year but was offered chrystal methamphetamine ("ice") by a work colleague and relapsed into using it in increasing amounts. He used ice on and off throughout his 30s although he was able to refrain from doing so in custody. After he was released from custody he met the victim and started using ice again with her, this time intravenously daily. 7. Under the heading "Diagnosis (DSM-5)" Mr Borkowski diagnosed the applicant with Major Depressive Disorder; Amphetamine–type (Crystal Methamphetamine) Substance Use Disorder, Severe and Substance/Medication Induced Psychotic Disorder. Mr Borkowski commented on the applicant's compromised self-worth and the fact that he lacked mechanisms to cope with his circumstances which led him to experiment with illicit drug usage to deal with this before setting out the following: "[The applicant] described the subsequent pattern of ongoing illicit substance use since his late twenties, usually increasing at times of distress, interspersed with brief periods of abstinence. However it appears his ongoing drug use compounded his negative affectivity and depressed moods when not under the influence of substances, and over time his substance use and psychological discomfort became cyclical and bi-directional in their interactions insofar as he used drugs as a way to alleviate negative moods, with drugs causing an exacerbation of his negative mood states were not under the influence. At the time of the current offence, [the applicant] had relapsed into a frequent cycle of 'Ice' use, extending to include intravenous use. His excessive 'Ice' consumption appears to have caused the onset of delusions, paranoia, and hallucinations, all of which are consistent with a Substance/Medication Induce Psychotic Disorder." 1. Mr Borkowski opined that the applicant's risk of future drug use and reoffending would be reduced if he had access to and engaged in a number of coordinated multi-service treatment options. 2. Dr Furst also diagnosed the applicant as having a Major Depressive Disorder in remission, a Substance Use Disorder [methyl-amphetamine dependence] and Drug-induced mental disorder [drug-induced psychosis]. He opined that the events the subject of this charge were likely triggered by the use of stimulant drugs resolving relatively rapidly when he stopped using methyl amphetamine. He stated this was evident from the Concord Hospital records. He stated that "the use of methyl amphetamines and related symptoms of depression, suicidal ideation and psychotic symptoms may well have affected his judgment". He recommended specialist drug and alcohol input and counselling/rehabilitation modules for his drug and alcohol addiction issues. 3. The applicant gave evidence on sentence. He described the progress he was making toward rehabilitation in custody as follows: "Q. Since being in custody, have you used any drugs? A. No. Q. Have you incurred any gaol punishments? A. No. Q Are you taking medication? A. Yes. Q. What medication are you taking? A. I'm talking medication for my depression, medication for my diabetes Q. Do you recall the name of the medication? A. Metformin and Lexapro. Q. Have you maintained contact with Justice Health whilst being in custody? A. Yes. Q. Have you attended upon psychiatrists or psychologists since being in custody since being charged with this offence? A. Yes. Q. Do you recall how many times you've visited both‑‑ A. At Parklea, at‑‑ Q. ‑‑either a psychiatrist‑‑ A. Yes, at Parklea I had. Apart from seeing the psychologists and psychiatrists for the reports, I had seen a psychiatrist at Parklea on three occasions to reduce some of my medication that I was on. And at Lithgow, I didn't see one. Q. Can you just tell the Court what your mindset is like at the moment? A. Good, clear. Q. Thinking clearly? A. Yes. Q. Since being in custody, besides working, have you attended upon any courses? A. No. They have been unavailable at the time." 1. The applicant gave an explanation for the offence that was inconsistent with the Agreed Facts and not accepted by the sentencing judge. He was cross-examined by the solicitor for the ODPP about his past attempts at managing his drug problems while in the community. 2. In cross-examination the applicant agreed that when he was released from custody in 2013 he was counselled by Dr Hanberger about his drug addiction. He agreed that after that he relapsed and was subsequently convicted in relation to drug supply. He agreed that he was willing to go to a rehabilitation centre and was approved for one for the purposes of a Supreme Court bail application but after he was refused bail he never subsequently attended any rehabilitation centre. He explained that when he was released from custody he did not go to any rehabilitation centre instead he started to use ice again in 2017 while he was working for his brother and residing with his parents. 3. In circumstances where he proposed to reside with his parents and work for his brother again, it was suggested to the applicant in cross-examination that the conditions of his release would be the same as the conditions when he had relapsed in the past. The applicant explained that this time was different because he had never been given the opportunity to "do a rehab" before. He stated that he could change and he was willing to do so. 4. Both the Crown and the defence provided written submissions. In the written submissions filed on behalf of the applicant the following was submitted: "It is submitted that the evidence of [the applicant's] mental illness mitigates the sentence in three ways: a. First, his moral culpability is reduced because his mental illness contributed to the commission of the offence in a material way. Therefore, the need for denunciation and the punishment is moderated R v Hemsley [2004] NSWCCA 228 at [33]; DPP(Cth) v De La Rosa [2010] NSWCCA 194 at [177]. b. Second, even in the absence of a causal link, his mental state further moderates the weight court would attributed to general deterrence: Ryan v R [2017] NSWCCA 209 at [19]. c. Third, there is a serious risk that imprisonment may significantly adverse effect is mental health; that is, the stress of the custodial environment may trigger the emergence of a mental illness: R v Verdins [2007] VSCA 102 at [81] cited with approval in R v Devaney [2012] NSWCCA 285 at [81]. It is submitted that any countervailing considerations arising from his mental illness would not adversely affect the sentence. Neither the nature of the offending nor the criminal antecedents warrant a conclusion the protection of the community should sound in special deterrence: Hemsley at [36]. The offender has immediately recognised the harm caused which is demonstrated by what he said to doctors at Concord Hospital which is contained in the discharge notes: 'keen to give up using ICE: 'It has ruined my life.' Further [the applicant] has not had any prior psychiatric admissions to warrant a finding that he is a danger to the community." 1. The ODPP solicitor's written submissions addressed these issues and did not accept that the applicant's mental health was causally related to the offending. It was submitted that the offence was planned and the offender had broadcast a clear statement of intent and purpose in his SMS message. In those circumstances it was submitted that his mental health had not contributed to the offence in a material way and that the offender was not an inappropriate vehicle for general deterrence. It was submitted that the applicant had acted with the knowledge of the wrongfulness of what he was doing as he told Mr Borkowski that he retaliated by trying to burn her possessions. It was also submitted that a custodial sentence would not weigh more heavily upon him because the reports tendered in his case outlined that his major mental health issue is his substance abuse disorder which is being effectively managed while he is in custody as is his depressive illness. 2. In oral submissions the ODPP solicitor submitted that the applicant had not been a witness of truth in his evidence before the court but did not otherwise speak to her written submissions in any detail. Counsel for the applicant relied upon the decision of Ryan v R [2017] NSWCCA 209 and submitted that even if his Honour did not find that there was a link between the applicant's mental condition and the offending, the court would still have regard to the applicant's mental health condition. Remarks on sentence 1. I have already set out the facts found by his Honour above. His Honour was satisfied that the applicant had had a dysfunctional upbringing which reduced his moral culpability. His Honour allowed a 25% for an early plea of guilt. His Honour did not accept the applicant's account of the events and thus approached the expression of remorse with "some caution"; but given the medical reports tendered before him, his Honour was ultimately satisfied that the applicant was genuinely remorseful. His Honour had regard to his lengthy criminal history and noted that it disentitled him to leniency. His Honour also noted that this was a domestic violence offence. 2. His Honour was satisfied that the applicant's prospects of rehabilitation were reasonable should the applicant "receive appropriate treatment" and that this would be enhanced by a longer period on parole. His Honour found special circumstances and varied the statutory ratio such that the non parole period was only 53% of the head sentence. 3. His Honour dealt with the issue of the applicant's mental health as follows: "The reports that are in front of me tell me about your mental health issues - which I accept are real - and which are either aggravated or caused by both your background as a child and your use of drugs. Your mental health problems and your excessive consumption of methylamphetamine directly contributed to the commission of the offence. No rational person would react to a break-up by setting fire to another person's house, thereby threatening the lives of other people. I said I did not accept your evidence today - and I do not accept that you tried to kill yourself in that home unit. But there was a point shortly after the offence when you did have serious issues concerning suicide and your parents took you to an institution for that purpose. Because of your mental health issues, you are not an appropriate vehicle for the full application of general deterrence, that is imposing a sentence which discourages other from committing such an offence. But, because of your mental health issues, which are largely unresolved and largely untreated, considerations of specific deterrence and the need to protect the community are considerations which are fully engaged." (Emphasis added.) Ground 1: His Honour erred in purporting to take judicial notice of facts adverse to the applicant Applicant's submissions 1. The applicant contended that his Honour erred in taking judicial notice of the fact that the spread of the fire to the roof void "posed a serious structural risk to the integrity of the building". It was submitted that although the court is entitled to take judicial notice of any facts on sentence, the court is constrained by the common law: R v Bourchas [2002] NSWCCA 373 at [43]; Farkas v R [2014] NSWCCA 141 at [14]. 2. It was submitted that the "natural meaning" of his Honour's comment was that the building was at risk, in effect, of collapsing which would be an aggravating factor and there was no evidence of this. Reliance was placed on the fact that expert witnesses routinely give evidence about the nature of risk, the intensity of fires and the structural integrity of buildings. This estimation requires knowledge of surrounding facts to get to the point of making an assessment as to likelihood, which was not before his Honour. 3. It was submitted that the finding was "not open" to the sentencing judge. Furthermore, the difficulty with just relying upon photographs, it was submitted, is that they can be deceptive and they may not in fact represent what the viewer sees in them. 4. Finally, the applicant submitted that it was "somewhat remarkable" that his Honour purported to take judicial notice of this structural integrity fact when he had early commented about the lack of expert evidence in relation to the fire. The Crown submissions 1. The Crown submitted that his Honour was not in error in taking judicial notice of the risk of the integrity of the block of units because every ordinary person may be reasonably presumed to know that fire could spread through the cavity and compromise the roof. The Crown submitted that most ordinary people would recognise that such a fire could cause water coming into the building if there was a storm, or cause a problem in high winds. The Crown relied on the examples provided by McHugh J in Woods v Multisport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9 (referred to at [66] below) and submitted that this fact was similar to the examples cited in that judgment. 2. The Crown relied on what was depicted in the photos to support their argument that judicial notice was permissible in the circumstances of this case. Consideration Ground 1 1. Although his Honour referred to taking judicial notice of the potential danger of the applicant's actions, this first ground, in effect, is a challenge to a factual finding of the sentencing judge. During submissions, counsel for the applicant accepted that the relevant test was whether the finding was open to his Honour: R v O'Donoghue (1988) 34 A Crim R 397. In doing so he expressly stated that he did not wish to address recent case law suggesting otherwise. This was a reference to the decisions in Clarke v R [2015] NSWCCA 232 and Hordern v R [2019] NSWCCA 138. In Clarke v R Basten JA (with whom Hamill J agreed) was critical of the approach of R v O'Donoghue, stating at [34] that: "…if the court is satisfied that the sentencing judge made a mistake with respect to a particular factual finding, which was material to the exercise of the discretionary power, the court should identify error and then enter upon its own consideration of the appropriate sentence." 1. In Hordern v R, Basten JA (with whom Hamill J agreed) again observed that "factual" error should not be confined to something akin to an error of law. His Honour concluded at [20] that the "constrained approach" in R v O'Donoghue is "clearly wrong" and should not be followed. At [11], his Honour appeared to adopt the language of "mistaken facts", observing that: "…to require this Court to reject an appeal against sentence when satisfied that the sentencing judge was mistaken as to a primary fact would create incoherence in the law." 1. As was the case in Gibson v Regina [2019] NSWCCA 221 at [61], it is not necessary for me to consider whether the test in R v O'Donoghue is correct in order to dispose of ground 1; whether the appropriate test is mistaking the facts or, whether it was not "open" to the sentencing judge, I am not satisfied ground 1 is made out. In Gibson v Regina Bathurst CJ also considered it unnecessary to consider this issue, but noted at [5] that the approach in Hordern v R seems to be contrary to what was said in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and the authorities cited in [35] of that judgment (see also Azzopardi v R [2019] NSWCCA 306 at [34]-[40]). 2. I propose to consider this ground on the basis that the test is whether it was "open" to his Honour to make the finding he did. 3. The Agreed Facts included the fact that the fire went into the roof void. In addition, clear coloured photographs were placed before the sentencing judge depicting the damage to the building caused by the applicant's actions. These photos were before this Court. The open sky can clearly be seen and the supporting wooden beams are blackened. Fortunately the fire brigade was able to arrive and extinguish the fire before it enveloped the building. It is in this evidentiary context that the applicant's submission that it was not open to find that the fire in the roof void "posed a serious structural risk to the integrity of the building" falls to be considered. 4. The applicant's complaint regarding the photographs is that usually this is a matter for expert evidence: Goode v Angland [2017] NSWCA 311. In Blacktown City Council v Hocking [2008] NSWCA 144, the NSW Court of Appeal noted that photographs can have probative value. However, as Tobias JA held, photographs must be the subject of "careful delineation" (quoting United States Shipping Board v The Ship St Albans [1931] AC 632 at 642). That is, a photograph cannot be used as the sole method by which a primary fact is proved where that fact is not revealed on the face of the photograph. Such facts might include distance, height or the location of shadows: Angel v Hawkesbury City Council [2008] NSWCA 130 at [67]. Furthermore, as Beazley and Tobias JJA held in Angel v Hawkesbury City Council (at [72]) photographs cannot be used to substitute for oral evidence from a witness or as a reason for rejecting "virtually unchallenged and consistent" evidence. At [71], their Honours noted the following passage by Lord Reid in C Van der Lely NV v Bamfords Ltd (19630 RPC 61 at 71: "…the judge ought not, in my opinion, attempt to read or construe the photograph himself; he looks at the photographs in determining which of the explanations given by the witnesses appears to be the most worthy of acceptance." 1. I am not satisfied that the judge relied solely upon the photograph to draw the relevant inference. Rather, his Honour drew an inference that was open to him based on both the agreed fact that the fire went into the roof void and the photographs which clearly depict burned wooden beams in the roof. 2. The applicant contended that the sentencing judge found this fact as an aggravating factor and as such was required to be satisfied of it beyond reasonable doubt. It is well established that a court is not permitted to make findings of fact in a way adverse to the interests of an offender unless they are established beyond reasonable doubt whereas it is sufficient that facts favourable to the offender be established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]; Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] and Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] and [66]. 3. There is no doubt that the sentencing judge was dissatisfied with the terms of the Agreed Facts tendered at the applicant's sentence. His sentencing remarks make that abundantly clear. There is no doubt that courts do at times feel frustrated by the terms of agreed facts but the correct approach in such circumstances are clear. As I observed in Tran v R [2018] NSWCCA 220 at [173]: "As the High Court observed in Filippou v The Queen at [70], sometimes it is not possible for the Court to ascertain everything that is relevant to the sentencing exercise, including the relevant facts, but when that occurs the sentencing Judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. Nor is the Court bound to adopt the view of the facts most favourable to the offender: Filippou v The Queen at [72]. Nor is the sentencing Judge bound by any agreements as between the Crown and the offender on matters such as role or moral culpability: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at 211 ([30]–[31]); DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32 ("DL v The Queen") at 772 ([39]); R v Uzabeaga (2000) 119 A Crim R 452; [2000] NSWCCA 381 at 458 ([34])." 1. I am not satisfied that his Honour considered the relevant fact to be an aggravating factor in the sentencing process in the context of the facts as stated by his Honour. His Honour certainly did not state that he had done so. 2. I consider his Honour to have mis-described what he was doing when he referred to taking "judicial notice" of the relevant fact. Accordingly, I have considered this ground as a complaint about the fact-finding process. Despite this, I will briefly address the applicant's submissions concerning alleged error regarding the question of judicial notice for completeness. As Callinan J observed in Woods v Multi-Sport Holdings Pty Limited at 511 [165]: "…judges are not free to apply their own views and to make their own enquiries of social ethics, psychology and history without requiring evidence or other proof." 1. Courts are permitted to take notice of facts that "every ordinary person" would know, as held by Isaacs J in Holland v Jones (1917) 23 CLR 149 at 153; [1917] HCA 26: "The only guiding principle—apart from Statute—as to judicial notice which emerges from the various recorded cases, appears to be that wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court "notices" it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt." 1. No exhaustive list can be compiled of facts that are open to judicial notice: Holland v Jones at 154 per Isaacs J. In Woods v Multi-Sport Holdings, McHugh J listed the following facts which could be subject to judicial notice (at 479): "Facts that have been judicially noticed without inquiry include: that cancer is a major health problem in the community and, despite research, little progress has been made in controlling it; that HIV is a life-endangering disease; that a child victim of sexual assault may be reluctant to resist, protest or complain about the sexual assault, due to fear of punishment or rejection; and that many lawyers now charge hundreds of dollars an hour for their services, that legal aid is often unavailable to litigants in tort cases and that the cost of those services is substantially increased when lawyers cannot give advice to their clients because the law is unpredictable." (footnotes omitted) 1. Although his Honour was there discussing s 144 of the Evidence Act 1995 (NSW), s 144 was intended to "reflect, and simplify" the common law: Australian Law Reform Commission, Uniform Evidence Law, Final Report, 8 February 2006. Thus, little turns on the fact that the sentencing judge did not direct that the Evidence Act applied to the applicant's sentencing proceedings for the purpose of identifying the relevant principles: s 4(2) of the Evidence Act. 2. Other examples of facts that have been judicially noticed include that in Canberra on a very cold winter mornings the water in areas open to the elements can freeze over (see Sadler v Leda Commercial Properties Pty Ltd [2004] ACTSC at [28] ). In Crown Glass & Aluminium P/L v Ibrahim [2005] NSWCA 195, it was permissible to notice "the fact that those operators in the building industry conduct a not insubstantial part of their business for cash". In University of Wollongong v Mitchell (2003) Aust Torts Reports 81-708; [2003] NSWCA 94, Meagher JA commented at [4] that "retractable seats are such a feature of normal life in New South Wales that one can, I think, take judicial notice of their existence" (Gzell JA disagreed). 3. The above examples are all matters where it has been held that the court could take judicial notice of matters which were not in evidence. That was not the case here. Although his Honour was dissatisfied with the Agreed Facts, I am not satisfied that he found any facts that went beyond the evidence put before him. The combination of the Agreed Facts and the photographs was a sufficient basis to draw the inference his Honour did. 4. Ground 1 is not established. Ground 2: His Honour erred in finding that considerations of specific deterrence and the need to protect the community were "fully engaged" in the applicant's case "because of" his "largely untreated and largely unresolved" mental health issues and/or denied the applicant procedural fairness in making that finding Applicant's submissions 1. In relation to the finding that specific deterrence was a factor that was "fully engaged" in sentencing the applicant, the applicant had two complaints. Firstly, he submitted that it was not open or justified on the evidence for the sentencing judge to make this finding on the basis that the applicant's mental health issues were "largely unresolved and largely untreated" and that the public needed to be protected. The applicant submitted that his mental health issues were being treated via medication and that his major depressive disorder was "in remission". 2. The applicant also submitted that he had been denied procedural fairness as the ODPP solicitor did not raise specific deterrence in relation to the applicant's mental health, although she did raise general deterrence. Furthermore, his Honour did not advert to the finding that he was minded to make in relation to specific deterrence as to give the applicant an opportunity to be heard. The Crown submissions 1. In response, the Crown referred to multiple reports tendered during sentence, including the Concord Hospital discharge and transfer notes and a report by Dr Furst dated 28 November 2018. 2. Based on this evidence, the Crown submitted that his Honour's findings were well open in the exercise of his discretion, as they showed that the applicant had a history of relapsing into drug use over a very long period of time. 3. In relation to procedural fairness, the Crown noted that the applicant prepared detailed written submissions on sentence addressing mental health. These submissions, according to the Crown, showed that the applicant was clearly aware of the distinction between general and specific deterrence in the context of mental health and actually made submissions about it. As such, there was no procedural unfairness. Consideration Ground 2 1. It is well established that the relevance of an offender's mental illness can pull in opposite directions on sentence. As Gleeson CJ observed in R v Engert (1995) 84 A Crim R 67 at 68: "It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise." 1. In the oft cited decision of R v Hemsley [2004] NSWCCA 228 Sperling J set out at [33]-[46] four ways in which an offender's mental condition is potentially relevant to the sentencing exercise. The first is where it contributes to the commission of the offence in a material way. In such a case an offender's moral culpability may be reduced, leading to less need for denunciation as a sentencing purpose (resulting in a lower sentence). The second is that it may render the offender an inappropriate vehicle for general deterrence. The third way in which a mental illness may be relevant is that a custodial sentence may weigh more heavily on the offender. The fourth basis is a countervailing one; the mental illness may be relevant to the level of danger which the offender presents to the community and thus renders special deterrence of more significance. 2. The applicant's solicitor specifically addressed these four factors in his written submissions before the sentencing judge, as extracted above at [43]. In his oral submissions he focussed on the first two of them, submitting that the applicant was not a suitable vehicle for general deterrence. The ODPP solicitor opposed such a finding but his Honour found in favour of the applicant. His Honour was satisfied that his "mental health problems" and "excessive consumption of methylamphetamine" directly contributed to the commission of the offence before observing that "[n]o rational person would react to a break-up by setting fire to another person's house, thereby threatening the lives of other people". The applicant's complaint in this court is that after making this finding his Honour ought not to have gone on to find that specific deterrence was a relevant factor. The complaint was made on two bases: it was not open for his Honour to make such a finding and that there was a denial of procedural fairness in doing do. 3. As for the complaint that it was not open to his Honour to find that the applicant's mental health issues were "largely unresolved and largely untreated", it is pertinent to have regard to what the applicant's mental health issues were. Both experts agreed that he had a major depressive disorder, a substance abuse disorder and a drug-induced psychosis. Two of these mental conditions pertained to his use of ice. All of the expert evidence was to the effect that it was the applicant's drug misuse which exacerbated his depression and the factors were interrelated. Thus, the question is whether it was open to his Honour to find that the applicant's ice addiction was "largely unresolved and largely untreated". 4. The evidence before his Honour was that the applicant had been afforded assistance for his drug problems in the past but had fallen back into drug use on each occasion. After his first time in custody he was provided with drug counselling on his release but relapsed. When in custody on the next occasion he was accepted into a rehabilitation centre but when he was not granted bail to reside there he did not go there voluntarily upon his release. It was proposed before the sentencing judge that he would live with his mother and work for his brother when released; the same conditions when he fell into drug abuse on his previous release. 5. As against this poor history, there was evidence that the applicant was drug free in custody. It was submitted that the applicant's evidence extracted above at [39] meant that it was not open for the sentencing judge to find that his mental health issues were "largely unresolved and largely untreated". 6. I am satisfied that it was open for his Honour to make the finding he did given the applicant's history. His Honour was looking at the need for specific deterrence when the applicant was released. The fact that the applicant was able to abstain whilst in custody did not answer the question of what he would do on release, especially given his prior history. 7. Both Dr Furst and Mr Borkowski referred to the programmes that the applicant would need to undertake to resolve his issues. If his problems were largely resolved, as was contended by the applicant in this Court, it is difficult to understand why the applicant would have relied on this material identifying his rehabilitation needs. As it was, the sentencing judge varied the statutory ratio such that only 53% of the sentence would be served in custody permitting a significant amount of time for supervision in the community. His Honour did so because he considered that the applicant required "appropriate treatment" which would be enhanced by a longer period on parole. 8. This case is a classic example of the way in which, as Gleeson CJ pointed out in Engert, the sentencing judge was required to make an individualised discretionary decision based on the material before him. The applicant's mental health issues pointed in both directions. His Honour ameliorated the sentence on the basis that no rational person would react to a break-up by setting fire to their ex partner's house threatening the lives of other people. But, once persuaded that the applicant's mental health issues, including his ice use, led him to commit the offence, the question of specific deterrence fell for consideration. 9. The second complaint under this ground was that the applicant was denied procedural fairness because his Honour did not warn the applicant that he would be making a finding that the applicant's mental health issues were "largely unresolved and largely untreated." The High Court confirmed the relevant principle in DL v The Queen [2018] HCA 32, where the Court (Bell, Keane, Nettle, Gordon and Edelman JJ) allowed an appeal against a sentence imposed by this Court on the basis that it had, inter alia, departed from an unchallenged factual finding made by the sentencing judge without notice to the appellant. This was held to be procedurally unfair and has occasioned a miscarriage of justice (at [44): see also Rodgers v R [2018] NSWCCA 47 at [123]-[126]; Brennan v R [2018] NSWCCA 22; Baroudi v R [2007] NSWCCA 48; Button v R [2010] NSWCCA 264; Milsom v R [2014] NSWCCA 142; and Chong v R [2017] NSWCCA 185. 10. This is not a case where the judge departed without notice from a particular position. At no stage did the sentencing judge express any particular position regarding whether the applicant's mental health issues were unresolved and/or untreated. Nor was it the case that the ODPP took no issue regarding the extent to which the applicant's drug problems had resolved themselves. On the contrary, it was the ODPP case that the applicant was likely to relapse, an issue upon which the applicant was cross-examined. 11. It could not be said that the applicant would have been taken by surprise by his Honour's finding in this regard. The applicant specifically relied upon the decision in Regina v Hemsley and submitted that the applicant's conduct was causally related to his mental illness. Given that the experts agreed that the applicant's mental illness is closely tied to his misuse of crystal methamphetamine, the applicant was clearly on notice that his Honour would need to make a finding regarding the applicant's control of his drug problem. 12. Ground 2 is not established. Orders 1. I would propose the following orders: 1. Application for leave to appeal against sentence is granted. 2. The appeal is dismissed. ********** Amendments 11 March 2020 - [63] italicis added 06 December 2021 - [63] "do" instead of "to" 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: 06 December 2021