The applicant in this recent matter sought to appeal on the basis that, in not forewarning the parties of his intention on a plea of guilty to reduce the head sentence slightly to reflect the guilty plea, and not providing him with an opportunity to be heard concerning not imposing a parole eligibility date at earlier than half the sentence, the sentencing judge had denied him procedural fairness. The court rejected the appeal on the grounds that the matters directly relevant to the sentencing discretion had been the subject of submissions at the sentence hearing.
Philippides JA and Mullins and Boddice JJ
28 September 2018
The applicant pleaded guilty to two counts of assault occasioning bodily harm (domestic violence offence), one count of choking, suffocation or strangulation in a domestic setting (domestic violence offence) and one summary charge of contravention of domestic violence order (aggravated offence). . In his reasons, Boddice J remarked that the relevant circumstances resulting in those charges had amounted to “an episode of sustained violence undertaken by a recidivist who expressed no remorse”. . Prior to sentencing, the Criminal Code had been specifically amended with a view to including an offence of strangulation in a domestic setting. That offence was accompanied by a maximum penalty of seven years in order to deter the increasing frequency of such behaviour. .
Ultimately the applicant was sentenced, concurrently, to imprisonment terms of three years and six months for the offence of choking, suffocation or strangulation in a domestic setting; and three months for the summary charge. He had already been in pre-sentence custody for 294 days, which was declared to be time already served. The sentencing judge declined to specify a date for eligibility for parole. As such, the applicant was ineligible to apply for parole prior to his having served half of the effective sentence of imprisonment of three years and six months: see s 184(2) of the Corrective Services Act 2006. .
In relation to whether the applicant had been afforded procedural fairness, the parties raised directly opposing arguments. Counsel for the applicant contended that procedural fairness required that the sentencing judge apprise the parties that he proposed to not mitigate the sentence to give the applicant the opportunity to obtain parole at earlier than half the period of imprisonment. . Given the applicant was not warned of that course, the argument was put that his counsel was deprived of the opportunity to attempt to dissuade the sentencing judge from structuring the sentence as he did: see R v Kitson  QCA 86, -. Conversely, the respondent observed that the sentencing judge, whilst being required pursuant to s 13 of the Act to take the applicant’s plea of guilty into account, was not required to also ameliorate the sentence. Nonetheless he elected to reduce the head sentence by a period of six months. Nor was he bound to invite submissions on not imposing a date for eligibility for parole, since that aspect of the sentence could not be characterised as resulting in a sentence which was unusual or incorporating an additional penalty that was unusual: see R v Robertson  QCA 164, .
In addressing the merit of each argument, the court commented that the nature of the sentencing process is “one of instinctive synthesis where the sentencing judge takes account of all the relevant factors to arrive at a single sentence”: see Markarian v The Queen (2005) 228 CLR 357,  and ; Barbaro v The Queen (2014) 253 CLR 58, . It should be borne in mind that a sentencing judge is not obliged to canvas each and every alternative available to them in arriving at a sentence: see R v Robertson  QCA 164, .
The court’s view was that it simply did not follow from the fact that the sentencing judge did not foreshadow his inclination to reflect the guilty plea by reducing the head sentence, without any further mitigation, that in so doing he failed to afford procedural fairness to the applicant. Nor could it be said that the sentence was “unusual”: see R v Kitson  QCA 86.
The appeal was dismissed, his Honour Justice Boddice noting that:
“A lack of procedural fairness may arise where a sentencing judge intends not to afford due weight to the offender’s plea of guilty, by reason of factors not the subject of submission by the parties. In such a circumstance, an obligation arises upon the sentencing judge to advise the parties of that intention, so as to first afford them an opportunity to make submissions in relation to the appropriateness of reliance upon those matters”. .
That had not been the case in the present matter, since the weight of factors directly relevant to the sentencing discretion, and relied upon by the trial judge for not setting a parole eligibility date, including that the plea of guilty occurred in the context of an overwhelming case and was not indicative of remorse, were themselves the subject of submissions at the sentence hearing. .
A de Jersey