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Sentencing Considerations
Substantive Law| What area(s) of law does this episode consider? | Criminal law – sentencing Evidence law |
| Why is this topic relevant? | As many as 85% of criminal charges brought in the District Court of NSW result in a plea of guilty. Further, the law relating to sentencing – both in terms of the sentencing options available to a court, and the evidence which the court may take into account in determining the appropriate sentence to impose – is constantly changing. |
| What legislation is considered in this episode? | Crimes (Sentencing Procedure) Act 1999 (NSW) Section 4 of the Evidence Act 1995 (NSW) |
| What cases are considered in this episode? | Barbaro v the Queen (2014) 253 CLR 58: in this case, the High Court considered whether it is the duty of the prosecution to make submissions about the available range of sentences. The prosecution’s role is: “… to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases”. In other words, the court will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer a view as to an appropriate range of sentences. This is now known as the Barbaro principle. CMB v Attorney–General (NSW) (2015) 89 ALJR 407: the Barbaro principle was considered in this decision; Chief Justice French and Justice Gageler said: “The Crown (by whomever it is represented) has a duty to assist a sentencing court to avoid appealable error. That duty would be hollow were it not to remain rare that an appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error”. The Queen v Olbrich (1999) 199 CLR 270: In this case the High Court considered the burden of proof insofar as it applies to sentencing proceedings. The majority said at [25]: … if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. The Queen v Olbrich stands for the proposition that the Court may not take into account any fact adverse to the interests of the offender unless that Crown has proved that fact beyond reasonable doubt; but facts which may be taken into account in the offender’s favour need only be proven on the balance of probabilities. Parker v DPP (1992) 28 NSWLR 282: where a judge is contemplating an increased sentence in a severity appeal, the judge must alert the offender so that they can withdraw their appeal. The practical effect of this decision is to virtually guarantee that an offender cannot receive a more severe sentence as a result of their own severity appeal than the one imposed at first instance. |
| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | The Queen v Dookheea [2017] HCA 36 Mental Illness Among New South Wales Prisoners, August 2003, NSW Corrections Health Services Public Defender’s resource page Judicial Commission website link to various sentencing statistics |
| David Turner:
1:00 | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. One of the most exciting events in the law, which has captured the public imagination and inspired countless pop culture artefacts, is the jury trial. The kind of trial which as a corporate lawyer I’ve regrettably had no experience of, however the vast majority of criminal charges brought result in a plea of guilty. As many as 85% of those in the District Court of New South Wales. Today we’re discussing practical tips for the sentencing process with Michael Vo, principal solicitor at Austere Legal and Matthew McAuliffe, barrister at Wardell chambers. Matthew and Michael, thanks so much for joining me on Hearsay. |
| Michael Vo: | My pleasure. |
| Matthew McAuliffe: | Thanks for having us. |
| DT:
| Now both of you actually have experience at both ends of the bar table when it comes to sentencing. You’ve both worked for the office of the Director of Public Prosecutions and now work at the private bar and in private practise respectively. How does the crown’s role in sentencing differ to the role of the defendant or the offender? Because it’s not their role to seek the harshest penalty necessarily, is it? |
| MV:
2:00 | No it’s certainly not. The duty of the Crown is primarily to assist the court to avoid appealable error and just give guidance in respect of questions of law, things of that nature. So the Crown can certainly provide an opinion about how serious it thinks the offence is, but it isn’t permitted to give an opinion on the, perhaps, appropriate range. It’s not permitted to say ‘well we think this offence should result in a penalty of five years imprisonment’ for example. |
| DT:
3:00 | It’s the Barbaro principle.[1] TIP: We’re talking here about the High Court’s 2014 decision in Barbaro v The Queen, the most important bit of which can be found at paragraph [39]. In that case the court said the prosecution’s role is “… to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases”. In other words, the court will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer a view. This principle was also explored in another High Court decision in 2015, CMB v Attorney-General where Chief Justice French and Justice Gageler said at [38]: ‘The Crown (by whomever it is represented) has a duty to assist a sentencing court to avoid appealable error. That duty would be hollow were it not to remain rare that ‘an appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error’.[2] Michael will now explain that principle in practice. |
| MM: | That’s right the case is Barbaro v the Queen. |
| MV:
4:00 | Yeah my experience with the crown, is that quite often they fairly present the facts. It’s their duty to guide and assist the courts in terms of which facts should go up and also in terms of negotiating what should go in agreed facts, including form one schedules. And it’s their duty to produce to the court and antecedents of offenders, any prior matters that need to be raised. Particularly where they’ve got a tendency, or they’ve got a propensity to commit the same offence again. It’s their duty to produce the facts, the crown bundle. |
| DT:
| A lot of what you described just then Michael are some of the topics that we’re going to talk about today, but I’m glad you mentioned negotiating the facts or even the contents of the form 1 schedule, because the sentencing process begins so much earlier than the sentencing hearing itself, doesn’t it? Let’s talk about making representations or negotiating the contents of a form one or the agreed facts. How does that process begin? Maybe Matthew perhaps you tell me. |
| MM:
5:00
| Firstly, with respect to representation, so that that involves the accused making the decision to write to the prosecution, whether it be the police in the local court, or the ODPP for up in the District Court, and setting out perhaps reasons why some charges should be withdrawn. And those reasons could be discretionary, or they can be legal. But it’s important at that point to be aware of the forensic decision you’re making to write to the prosecution. Because you might well be pointing out things that are wrong with their case and you might be giving them the opportunity to fix them. |
| DT: | Yeah I see. |
| MM: | So in my view, when considering whether to write representations or not, you should be identifying problems that are not fixable, because you’re only going to alert the prosecution to the holes in their case. That said, you might write some representations, there might be say 5 charges, you might say ‘well look, my client is willing to plead to two or three of the five, on the basis that the balance is withdrawn.’ And it’s quite an efficient way to deal with the charge negotiation process. |
| DT: | Michael do you have any particular experiences with negotiating on charges that are actually laid? |
| MV: 6:00
7:00
8:00 | For the EGP matters or strictly indictable matters, you would write representations to the prosecution. Particularly whereas Matthew has pointed out there are issues that are quite difficult to overcome. TIP: Michael is talking here about ‘Early Guilty Plea’ matters. The Early Appropriate Guilty Pleas Reforms commenced in April 2018, designed to facilitate and encourage appropriate guilty pleas earlier in the criminal justice process – noting that almost a quarter of guilty pleas in serious criminal cases were not entered until the first day of trial – which is not only wasteful of court resources, but distressing for victims as well. The reforms had five elements. First, the investigating agency – usually the NSW Police – has to provide a simplified brief of evidence – in other words, one that isn’t necessarily in admissible form – to the ODPP. Then, the ODPP has to review that simplified brief of evidence and confirm which charges will proceed to trial and which will be withdrawn. The simplified brief of evidence, and this early review of which charges are proceeding, give the defence more notice of the case they must answer and correspondingly enables the defence to give advice as to the appropriateness of an early guilty plea. Thirdly, the prosecution and defence must hold a case conference to discuss the case and whether there are any charges to which the defendant would be prepared to plead guilty – this is the process that Matthew and Michael are talking about now. Fourthly, the bill removes the discretion on local court magistrates to discharge in respect of these serious indictable matters – a discretion that, before the reforms, was only exercised in 1 percent of cases. That gatekeeping role is now left up to prosecutorial discretion. Finally, the reforms prescribe caps on the utilitarian discounts that can be applied for guilty pleas at different stages of the criminal justice process. At the earliest stage, a 25% discount on sentence can be applied – but if a guilty plea is only entered into at the latest stage of the process, the discount can only be a maximum of 5%. You would ordinarily have a look at the brief, take some instructions after you’ve given the appropriate advice. Then you’d write to the prosecution usually with a charge negotiation offer, which is what the DPP and the court recognise it does, and you’d see whether it’s accepted or not. Sometimes they might say no, and you might come back to the drawing board, come up with a different offer. But quite often if you’ve put something quite reasonable and quite often when you write negotiation facts and also representations, you’ve got to be cautious not to give away the element of surprise to give to the prosecution what the defence case will ultimately be. So there is some skill in terms of writing what the representations are. |
| MM: 9:00 | I think a good example of this idea of perhaps exposing a fault in the prosecution case, the classic drug house type scenario where police come, classic case is Filippetti.[3] Police come into the house, they found a bag of cannabis stuck in the lounge. It’s a share house, someone may have been sitting, two people may have been sitting on the lounge at the time, police might charge one of the two people sitting on the couch. Now it’s incumbent upon the prosecution to exclude that all of the other people in the house weren’t the owners, and therefore in possession, of the cannabis. You might get a brief that doesn’t have any statements from the people in the house. So you, if you were to write to the prosecution, you’d say ‘well look, your case at this point is going to fail because you’ve not excluded everybody in the house.’ The first thing they are going to do is go and get statements from everybody in the house. |
| DT: | Absolutely. |
| MM: | So in that situation you wouldn’t be making representations highlighting those sorts of things. |
| MV: 10:00
11:00
| Matthew and I actually had a case together a couple of years ago, and we’ll name this defendant Ted, and it involved Ted robbing a person at Hyde Park at 2am in the morning. Now he was initially charged with armed robbery and we made representations to the prosecution where we were possibly aware that the victim in the matter would not be attending court. And in those instances where victims are unlikely to attend court, the prosecution would be more willing to provide a pretty good charge negotiation offer where quite often it would be too good to say no from the defence point of view. We eventually ended up pleading guilty to a steal from person which was significantly less than what was charged. We thought that was a pretty good offer, we jumped at it, we gave him the advice. We also had to give him the advice as to whether he should plead not guilty and run the gauntlet just in case she doesn’t come to court. But he ultimately pleaded guilty to that because he had a number of matters going on at the same time. And what’s important is that when you’ve got a client who’s got several unrelated matters going on, its most efficient to sentence them all at once because that encompasses what’s called totality as well. So when the court sees all these different sets of matters, you have clients charged with multiple sorts of matters, they’re sentenced simultaneously so their sentence is all wrapped up in one nice clean package. |
| DT: 12:00 | What you just highlighted Michael is that I suppose the sentencing exercise begins even earlier than that, which is having a conversation with a client about whether it is appropriate to enter a guilty plea, and I imagine particularly for some offences it is an extremely difficult conversation to have. Michael perhaps I’ll start with you, do you have any tips about having that conversation with your client about entering a plea and perhaps the difficult recommendation of entering a guilty plea? |
| MV: | The first order of advice for clients is the maximum penalties for all the offences as well as the maximum discount available to them. The earlier they enter the plea of guilty, the higher discount available. So if they enter a plea of guilty at the earliest opportunity that’s a 25% discount. And as time drags on if you plead not guilty, have a look at the brief, that is ultimately reduced. And if you plead guilty on the day of trial, that’s reduced to as low as 5%. |
| DT: | Wow. |
| MV: | So there’s a lot of incentive for them to reduce the penalty, particularly where that can make the difference between going to jail on a full time basis, or being sentenced to a good behaviour bond with a community corrections order. |
| MM: 13:00
14:00 | That conversation is always difficult. In my experience it varies depending on the crime. Yeah so for example with sexual offences, there is often a great deal of shame particularly when they involve family members on the part of the offender to admit that they have committed these offences. When you sit down with the client, in my view it is about expressing what the evidence is against them. You’re not telling them that you hold a personal opinion about what they have done and in fact your duty is not to make any assumptions about them. Your obligation is to look at the evidence and give them advice about the strength of the evidence against them and often it takes weeks. Multiple conferences over and over again to get them to a point where they’re willing to come out and say ‘well yes I accept that the evidence against me is so great that there is no point in running to hearing.’ Then of course you’ve got the sweetener which is the discount. Sooner they enter the plea, the greater the discount. |
| DT: | Is there a tension there Matthew where it might take weeks of coaxing and negotiating to become alive to that reality where that earliest opportunity to play guilty might be much sooner than that? |
| MM:
15:00
| It depends on which jurisdiction you’re in. TIP: Criminal matters can be heard in different courts in NSW depending on the gravity of the offence. The Local Court has jurisdiction to deal with less serious offences, known as summary offences determined by a magistrate. Whereas the District Court has jurisdiction to deal with all criminal offences except murder, treason and piracy, which are dealt with in the Supreme Court. The Federal Court also has jurisdiction in regard to serious criminal cases under Commonwealth legislation, including offences for serious cartel conduct under the Competition and Consumer Act. Basically, the more serious the crime, the higher the Court. So in summary, pirates take heed – if you’re caught marauding on the high seas by Australian authorities, the Supreme Court is where you’ll end up. So the more serious the offence, if it’s proceeding to the District or Supreme Court, you have a lot of time up your sleeve to work on a plan. If the offence is not particularly serious and its remaining in the local court, the time is ticking effectively from the very first mention date. Yeah, plus sexual offences, for example, you do have enough time and you are entitled to receive the complete brief before you have those sorts of conversations with your client anyway. |
| DT: 16:00 | We were talking earlier about negotiating the contents of the form 1 schedule, the charges themselves, but of course the charges need to be consistent with the facts and where a charge is negotiated, they have to be consistent with the agreed facts. An example I suppose I can think of is you couldn’t agree to the simpliciter if the agreed facts include circumstances of aggravation. TIP: Just stopping here quickly to explain a bit of jargon. The ‘simpliciter’ is the basic form of an offence, without aggravating factors. Are there challenges in negotiating the agreed facts either as the Crown or as acting for the offender? And do you sometimes find that the agreed facts end up a little artificial as a result of that exercise? |
| MV: 17:00 | What you as a Crown would try and avoid is artificially breaking down the charges. So for example if you’ve got an armed robbery where a weapon is produced, you wouldn’t be inclined to break down the charge to a steal from person and possess a knife in a public place. You try and keep the original charge that fits the bill, and that would make the difference between having the matter resolved summarily or in the District Court. With those facts you’d need to have a look at what’s in the brief, you’d need to get instructions from what the victim would say, as well as the views of the officer in charge. You’d need to get the views of the powers that be, and if everyone’s agreeable and on board, then you prepare a set of agreed facts. There is a bit of to-ing and fro-ing with the defence or with the prosecution getting the charges right as long as it fits the bill and getting the right charges in the form 1 as well to reflect the seriousness of the offence. |
| DT: 18:00 | I’m glad you mentioned that Michael that the Crown does seek the victim’s view of what the agreed facts and the charges are going to be, because Matthew imagine that must be quite difficult if you’re negotiating on a set of agreed facts that might remove a certain instance of aggravation, one that might have resulted in the victim being wounded for example, in the case of a break and enter, that might be very difficult to convince the victim of the practical merits of doing that. |
| MM:
19:00
20:00
| It turns on the victim, the nature of the victim. Are they someone who is very reluctant to come to court and therefore more willing to say ‘look I’m happy with the simpler charge’? But ultimately the victim’s view and the officer in charge of the investigation are, they are just their views and the ultimate decision is made by the Director as to whether the negotiation or the charge offer is accepted. But with this idea of the break and enter for example, where a knife may have been involved, if the knife’s included in the agreed facts, that’s a circumstance of aggravation, it can result in a more serious charge and obviously a more serious penalty. But when negotiating those sorts of things, I think it really turns on the strength of the evidence. Because that’s what both parties are thinking. If these negotiations fail and this proceeds to trial, will I be able to prove it? So I recently had a case very similar, break and enter, the victim and the offender were known to each other and there was a scuffle. The victim was affected by drugs, possibly the offender was as well, there was a suggestion that something sharp was pointed into the ribs of the victim. Victim at no point saw a knife and we negotiated facts that didn’t include any knife. The original allegation was that there was a knife involved, but I think when reality hit the prosecution realised that they couldn’t probably prove beyond reasonable doubt that there was a knife involved. So I think that strength of the evidence, in my view, guides both parties position in respective negotiations TIP: Now most of you listening will know that in criminal matters, the prosecution must prove its case beyond reasonable doubt. The standard of proof in sentencing, on the other hand, can be a bit different, and Michael and Matthew will discuss that later. As an aside though, an issue with the standard of proof that comes up with some regularity is that of how to explain what ‘beyond reasonable doubt’ means to a jury – the High Court’s 2017 decision in R v Dookheea, at paragraph [41],[4] gives some guidance on that. We will include a link to this case in the Show Notes. |
| DT: | That’s a great example Matthew because I think it contextualises what we’re talking about when we’re talking about negotiating agreed facts. That’s why you are negotiating in the first place. And it really seems that that’s because there is an alternative to reaching an agreed outcome. |
| MM: 21:00 | Precisely, and it’s not sort of horse trading, and I think victims, it’s important that victims where that’s not what occurs, particularly when the case is with the office of the Director of Public Prosecutions, the guiding force is the strength of the case. |
| DT: | And I suppose whether you’re acting for the Crown or for the offender, that’s really the touchstone of those negotiations is if I can’t reach agreement on this what will be a likely outcome at trial. |
| MM: | Precisely, correct. |
| DT: | Now we’ve moved past the, actually before we do that I just want to talk about negotiating a sentencing recommendation itself as distinct from negotiating with contents of the form one on the agreed facts. That’s something that’s possible but importantly it’s not binding on the court itself, is it? |
| MM: 22:00
| Precisely, and in my experience that they’re quite rare. Particularly when decisions like Barbaro have come about, I find it quite rare that in the course of negotiation the Crown will say, except even if I suggest it, so will you agree that this is an offence where the accused wouldn’t go into custody, would he? And they would almost invariably say well look that’s a matter for the sentencing court, and often the person you’re negotiating with might not be the person who appears at sentencing. So the negotiator doesn’t want to bind the person appearing and then ultimately it almost doesn’t matter because the court’s going to do what it’s going to do. It does help if when you arrive at sentence, the Crown, you make a submission your Honour this is not a case in which the accused should go to jail, and the Crown stands up and says well we disagree with that. Yeah it absolutely helps, but whether that is actually a part of the charge negotiation, it’s quite rare. |
| DT: 23:00 | It sounds like more than just negotiating a sentencing recommendation itself, it’s actually having the professional courtesy to discuss one’s position and likely submissions before the court in advance, so that the issues can be narrowed so much as they can be. Mike you say that’s a fair characterisation? |
| MV:
24:00
25:00
| I agree. In fact, I had a matter yesterday in court where there was a domestic violence offence where my client had assaulted his partner, he’d dragged her inside a granny flat by the shoulders and he pulled out a firearm on her. Now these facts, they were quite serious particularly when he was on an existing good behaviour bond for similar types of offences for domestic violence. And it ultimately came down to myself addressing the judge as to whether the matter should be resolved by way of a term of imprisonment. Now as you know, terms of imprisonment could be served by way of an ICO and also by a term of full-time imprisonment where you actually serve in a corrective facility. TIP: An ICO is an Intensive Correction Order which is a type of custodial sentence of up to two years, which is served in the community instead of in full-time custody. An ICO can include a whole range of conditions, such as home detention, electronic monitoring, curfews, community service and substance bans, and have replaced suspended sentences, which is no longer a sentencing option. When making an Intensive Correction Order, community safety is the court’s paramount consideration when making this order. For that reason, ICOs are not be available for offenders convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism, breaches of serious crime prevention orders, and breaches of public safety orders. But the prosecution in that matter didn’t make submissions as to what was appropriate, so where they are absent, it’s your duty to address the judge as to what is the most appropriate penalty. And most lawyers have a good gut feeling as to what is the appropriate penalty, but at the same time you don’t want to lose credibility in front of the judge by suggesting or asking for a penalty which is way out of the ballpark. So in that instance, significant aggravating factors, the offence occurred in the presence of a young person, at the victim’s home, whilst on good behaviour bond, and in an instance like that you wouldn’t be asking for a section 10. It was quite serious so it was a question of determining whether he should be serving the penalty in gaol or and by way of an ICO. |
| DT: 26:00 | That’s such an evocative example Michael and it’s an example of something that I think judges have described that for defence counsel the job of, in sentencing, is to land on the runway, not before it and not after it. And that there’s a goal of avoiding appealable error as much for the defence counsel as there is for the Crown, seeking an appropriate sentence that’s going to withstand scrutiny by the Court of Appeal. We’ll come on to that a bit later, but the example you gave was one of those edge cases where an ICO might have been appropriate or a full-time custodial sentence might have been appropriate and in that sort of situation you would obtain a sentencing assessment report from corrective services what’s called a pre-sentence report. What are some of the things to look out for in a sentencing assessment report? |
| MM:
27:00
28:00
29:00 | Since the changes, they are much more limited in what they say. They used to be somewhat more comprehensive. My view is to try and avoid them if possible. They can be disastrous. And they’re documents about which you have no control. So your client goes and sees a corrective services officer, who they probably spend 30 minutes to an hour with, perhaps ask a few questions about their background, they ask some questions about their attitude to the offence, things like remorse, and that corrective services officer writes a report that is sent to the court and is tended by the prosecution. You most likely see the report on the day that you arrive in court. Maybe a couple of days in advance. If your client disagrees with the content of the report, it’s very difficult to fix. The contrast is with your own psychological report where you send your client off to a psychologist to have a comprehensive assessment and they take information about their background, they take information about their views in respect of the offence, their remorse, things of that nature, and the report is sent to you. And you can make a decision about whether to tender it or not. If, for example, and I’ve had this occur several occasions, you get a sentence assessment report in which the accused or the offender has said something like…so I had a situation in which I was acting for someone who’d committed a number of sexual offences he went and was assessed for a sentence assessment report and there was a comment in the report that he viewed himself not as a sex offender. Which is usually problematic because that demonstrates, if he said that, that demonstrates that he has no remorse or insight into the offending conduct. He disputed that he said that. And so one of the only ways you can fix it is by asking for the proceedings to be adjourned, subpoenaing the officer who wrote the report, getting them into court, cross-examining them about your instructions that it wasn’t said. |
| DT: | What a nightmare. |
| MM: | Complete nightmare. it’s not going to look good, it’s going to annoy the judicial officer and you’re very unlikely to extract some kind of concession that the comment wasn’t said. So there is danger in these reports. Perhaps a better way to deal with it is to attempt to make contact with, which is what we do in this situation, make contact with the officer, suggest to them that perhaps that wasn’t said and that your client is willing to do another interview, and try and address it that way. |
| DT:
30:00 | It is a challenge and it comes back to what we were talking about in terms of this careful negotiation of the agreed facts beforehand, that you might very carefully reach a result with the Crown or with the offender if you’re acting for the Crown, on what the agreed facts are and then in the interview with corrective services, the offender might give an account of the offence which is completely inconsistent with these facts… |
| MM: | …which is a total disaster. TIP: I’m about to ask Michael and Matthew about the use of medical reports in the criminal proceedings. These reports are often used where there is an issue with mental illness. Most people with mental illnesses do not commit crimes, but studies have shown that people suffering from mental illness are over-represented in the criminal justice system. For example, an August 2003 report called Mental Illness among New South Wales Prisoners found that around that 38% of sentenced inmates in correctional facilities had suffered from a mental disorder in the previous twelve months. We will include a link to this report in the Show Notes. |
| DT: | Michael, Matthew mentioned another kind of report which you might obtain in advance to the sentencing hearing which is a psychiatric report or a psychologist’s report. They each have their own uses, what’s a circumstance where you think it’s appropriate to obtain one of those reports? |
| MV: 31:00
32:00 | We have offenders where they may have a mental illness that hasn’t previously been diagnosed and they need treatment for it, then quite often it’s very much appropriate to obtain them. Particularly where the psychiatrists or psychologist can provide a treatment plan or how to address their offending behaviour so that the offences don’t reoccur. And there’s a lot of utility in them, particularly where the offenders are very serious. And I quite often recommend them for matters that are resolved in the District Court and Supreme Court and sometimes in the local court where it’s appropriate. It’s a good way of extracting information from a client where it’s a lot more detailed from this sentencing assessment report. It goes through their childhood history, family history, mental health history, sometimes any treatments they would have received in the past as well, and they also pick up mental illnesses that haven’t been previously diagnosed. So there is a lot of utility in that. |
| DT: | Michael you said that it might be useful to obtain a report where a client has a mental illness or a psychiatric illness that requires treatment, but I imagine it can be hard to identify that in a client from an interview, do you have any tips or insights about identifying that need for a report? |
| MV:
33:00 | One of the very first questions I ask them, particularly taking instructions, is asking whether there’s any history in the family of any mental illnesses. They’re very much up front about that information. And whether it’s a yes or no, you have them speak to a psychologist as well after you’ve obtained some instructions, and sometimes you might get offences where if they’ve got no criminal record and it’s an offence that’s completely out the blue, that might suggest something along the way leading up to the offence, something might have occurred which might have triggered the reason for their offending behaviour. |
| DT: | You have to be insightful and curious about what’s happening in your client’s life to see it, don’t you? |
| MV: | That’s right, and you need to get a really good feel for yourself as well. |
| MM: | The threshold isn’t necessarily whether they have a mental illness or not. The report can be really useful to look at what was going on in the individual’s life at that given time. |
| DT: | Put the subjective case before the court. |
| MM: | Precisely, and do it in an efficient way and perhaps a way that is better than what you could do, or your client will do, if you decide to call them. |
| DT:
| Matthew you mentioned that there’s a forensic decision to make about whether you ultimately tender report once have obtained it, in your view what does that forensic decision hinge on and have you ever experienced a situation where you thought you know even despite the benefits for the subjective case of tendering this report I’m not going to tender it? |
| MM: 34:00 | Occasionally. I think I can recall perhaps two occasions where that’s occurred. Primarily it is when the offender shows absolutely no insight or remorse into the offending and tendering the report would have the effect of making things worse effectively. That said, in my experience almost invariably they are helpful on sentencing. I mean there are limitations to what the court can do with them. There’s a long line of authority that says the court is only to place limited weight on the contents of a psychological report, unless the offender gets in the box and on oath accepts everything that he’s said. Because otherwise they’re just unsworn, untested, hearsay… |
| DT: | …very difficult for the state, Crown, to test… |
| MM: 35:00 | It’s very difficult for the Crown to test it anyway if an accused gives a history of trauma in their childhood and perhaps even continuing trauma. It’s very difficult for the Crown on sentence to cross examine to the effect that that didn’t occur without material to suggest that it didn’t. |
| DT: | Absolutely. Not going to cross examine that evidence away. |
| MM: | Very dangerous. |
| DT: | There’s something else as defence counsel that you can prepare before a sentencing hearing, is a character reference. I think these are pretty common at all levels of sentencing hearings in the local, district or Supreme courts, but they vary greatly in utility I imagine. Matthew what makes a good character reference and what makes a bad character reference? |
| MM: | A good character reference is different to all of the other character references. |
| DT: | It’s not written in the same hand for example. |
| MM:
36:00
37:00
38:00 | Precisely. It’s not written on a solicitor’s letter head is a good start. They need to stand out. Particularly for in the local court, the magistrate might be dealing with 20 or 30 sentence matters that day. TIP: It’s no secret that magistrates are facing truly enormous caseloads. As at December 2019, there were 139 magistrates responsible for dealing with the Local Court’s civil and criminal caseload – and in 2019, there were almost 350,000 criminal matters commenced in the Local Court. The Chief Magistrate, Graeme Henson, has also made it no secret that in his view, the state government is not sufficiently resourcing the Local Court. In the 2019 Local Court Annual Review, his Honour said: Where there is a lack of response, or urgency in response, from within government to the provision of additional resources then the only practical short-term source of assistance available to the Court is the use of additional time. Local Courts are sitting longer and with the additions to its criminal jurisdiction it is now dealing with more serious and complex matters which were previously the sole responsibility of the District Court. I have little hesitation in stating that in terms of both volume and levels of complexity of matters the Local Court of New South Wales is the busiest jurisdiction in the Commonwealth. Given these resourcing issues, magistrates have no choice but to deal with these sentencing matters very quickly – so you can understand why your references need to stand out. Half of which have references, they’ll read them very quickly. They’ve got to be genuine and they’ve got to, in my view, be slightly different to everything else. Of the utmost importance is that the person who writes the reference is aware of the charges and is aware of the facts that the person is being sentenced upon. If there’s no reference to that awareness in the reference, the prosecution can simply stand up and say well it’s very nice this person who spoke about their good character, but this person doesn’t seem to have any awareness of the current charges that are before the court. |
| DT: | Not sort of job references. |
| MM: | Precisely, and it completely undermines all the lovely things that are no doubt said in the reference. |
| DT: | Michael have you had an experience of a particularly good character reference? |
| MV:
| I have, particularly where the referee has spoken to the offender about it and they include parts of the conversation, particularly parts where remorse has demonstrated this contrition. They talk about how they regret committing the offence and what would be particularly good when they talk about how the offender feels for the victim as well. Because that demonstrates awareness with the offending. |
| DT: 39:00 | It’s not part of my practise as a lawyer, when I was a university student I sat in court a lot because I was a court reporter in the criminal court in Parramatta and I remember hearing a character reference that described not just an awareness, but a willingness on the part of this person’s employer to continue to support them after they had served their sentence. And I imagine that speaks to not only their good character but also their prospects of rehabilitation or re-entering the community after an offence. |
| MM:
40:00 | Precisely. I mean the court is, rehabilitation is one of the principles of sentencing for the court to take into account and particularly if the offender is younger, rehabilitation is of the utmost importance. And if a person can be supported in the community, whether that’s by family and/or employment, that is hugely significant on sentence. TIP: Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the seven purposes of sentencing, of which rehabilitation is one. The other six are: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender – called specific deterrence – and other persons from committing similar offences – called general deterrence, 3. to protect the community from the offender, 4. to make the offender accountable for his or her actions, 5. to denounce the conduct of the offender, 6. to recognise the harm done to the victim of the crime and to the community. |
| MV: | That reminds me, when I was prosecuting, I had someone tender a character reference from an employer who included lyrics from Michael Jacksons ‘Man in the Mirror’ talk about you know this person changing his ways and it was just really funny to read at the time. |
| DT: | It does meet your requirement Matthew of standing out from all of the others on that day. Is that a tip you’d be prepared to endorse? Bringing song lyrics in character references? |
| MM: | Review the lyrics. |
| MV: | Some people ask why not? |
| DT: 41:00 | Depends on the lyrics like not Cypress Hill lyrics. Now we were talking earlier about another forensic decision you have to make coming up to a sentence hearing which is whether or not to call your own client. The other way of putting a subjective case, but that’s a hugely risky endeavour. What, Matthew maybe I’ll start with you, what’s going through your mind when you’re trying to make that decision of whether to call your own client? |
| MM:
42:00 | I will need to speak with my client at length before I can make that decision. My position is normally it’s appropriate to call them unless there’s a good reason not to. Again, it depends on the jurisdiction you’re in. If you’re in the local court, yes you can call your client but it’s not done, and you are likely to annoy the bench who is dealing with a busy list, many matters, if you want to take 30 minutes to call your client, and you can get away with a lot more in terms of unsworn evidence in the local court. But my view is it’s almost always helpful to call your client, if time permits. Even if they are not a particularly articulate person. That may well assist. It gives the court the opportunity to hear from them as a real person without everything coming through the glossy mouth of a barrister or solicitor who’s putting everything in really lovely words. The judge can see the whites of the eyes of the offender, and in my experience it’s almost invariably helpful unless the offender is the type of person who shows no insight into the offending and they may do what you mentioned before, which is traverse the facts that have already been agreed, and it no doubt makes things much worse for them. |
| DT: 43:00 | Michael, I suppose sometimes the forensic decision isn’t actually left to you if the judge expresses an interest in hearing from your client, how can you prepare with your client beforehand for their appearance in court and for giving oral evidence? |
| MV:
44:00 | Ordinarily you’d call them into your office and have a chat with them and put them through their paces so you’d be asking them questions that you’d be asking them through evidence in chief, and also some questions where they could expect from the prosecutor. Now sometimes what they might say in court might be inconsistent with what’s said in a character reference, or a psychologist report or even the fact sheet, so it’s important to get all those things right. Particularly where, as Matthew raised earlier, you don’t want to say something that is too self-serving, and that raises concern types of issues, so you want to say things consistent with what’s already been tendered. And it you really have to gauge whether that person would be a great witness or not. Sometimes the judge needs to see the colour of the person’s eyes because the character references or their psychologist’s report come across as clinical and when you call the person it’s good for them, it’s good for the judge to get a feel of what they are in person. And it’s like if you run a hearing, judges or magistrates, they do make an assessment as to how the person gives evidence. That also applies when the person gives evidence at their own sentence proceedings. |
| DT:
45:00 | I imagine something that you want to get out of that oral evidence in chief is remorse. There’s an insight into the offending and a sense of remorse for what they’ve done, but I also imagine that a leading question like are you remorseful for what you have done? The answer to that invariably will be yes, is probably given very little weight at all by a sentencing judge. Matthew as an advocate, what tips do you have for producing that evidence in a compelling way? |
| MM:
| I think it’s important that you have given your client the opportunity to know what’s coming. Obviously, you cannot put words into your client’s mouth, but you are able to sit down with them in advance of the proceedings and say these are the questions I propose to ask you. I want you to think about them, and I want you to give some honest evidence in front of the judge. And you’re exactly right ‘are you remorseful?’ is probably quite an unhelpful question if you put yourself in the shoes of the judge |
| DT:
46:00 | Yeah absolutely and while we’re on the topic of evidence, I think there’s a common misconception that there are no rules of evidence in a sentencing hearing because of section 4 the Evidence Act, but that isn’t quite right, is it? There actually are some rules of evidence in a sentencing hearing. |
| MM:
47:00 | Yes, the short answer is yes. And well firstly with the Section 4 point, you could make an application that the Evidence Act applies if it’s in your best interest to do so. TIP: As Matthew says, section 4 of the Evidence Act provides that while the Act ordinarily does not apply to sentencing matters, it can be made to apply if the Court so directs. It can also be made to apply only in respect of certain matters. Say for example that the Court directs that the Act should apply to some second-hand hearsay evidence about how remorseful the offender is. That doesn’t then mean that s 91 will automatically operate to exclude evidence of past convictions. One of the parties might be seeking to tender a document that you consider not to be likely inadmissible under the Evidence Act, then you can make that application. I think the test is an interest of justice under section 4, but in respect of ordinary sentence proceedings, common law rules of evidence are available. Often they’re overlooked by advocates, but things like burden and standard all remain. |
| DT: | Particularly in terms of standard of proof, I think it’s Olbrich v R is an important authority in terms of the burden of proof that the prosecution bears-[5] |
| MM: | -in respect that of aggravating features. |
| DT:
48:00 | Yes that’s right, and so if the court is going to make a finding that is adverse to the offender on sentence, the standard is beyond reasonable doubt. For any things that are going to be a benefit to the offender, it’s on balance. There’s one other form of evidence that’s fairly consistently tended is BOCSAR statistics or comparable cases, and they can be a useful way of contextualising a case or giving specific comparatives respectively. What are some of the limitations to statistical comparison? TIP: BOCSAR is the NSW Bureau of Crime Statistics and Research. |
| MV:
49:00 | My experience tells me that they tend to be yardsticks, so they’re only to be used as a guide and you’ll come across Magistrate judges who say that ‘well we don’t know what every individual case is’ and sentencing proceedings, it’s done by way of synthesis. So they look at all the facts, any aggravating factors, any subjective material and when they read all that, they tend to get it right in terms of what the appropriate penalties are. And I used to rely on BOCSAR statistics, also statistics from the judicial commission, but I find that more commonly in more recent times they’re not really relied upon. There was a decision recently that actually said that those statistics tend to be just yardsticks. |
| DT: | I think the language of the authority is that they’re a ‘blunt tool.’ |
| MV: | That’s right. |
| MM:
50:00 | Statistics are good if they help. There is a difference between statistics and comparative cases. So the judicial commission website permits you to find a particular offence, it might be robbery in company, for example, and you click on it and it gives you a number of options to modify the statistics in respect of particular offence based on characteristics like if a plea of guilty was entered, if the person has prior offences, things of that nature. You can limit it down and then it will produce a PDF with a graph showing the types of sentence that are given for this particular offence, the length of those sentences, but usually the court will be reluctant to place too great a weight and authority in this regard, because as Michael said, statistics don’t reveal the individual circumstances of each case. And the point of sentencing is that each case is to be considered on its merits and therefore, statistics simply don’t permit a court to do that. |
| DT: | I suppose the corollary of that point is that a statistical sample is only compelling if it’s a large enough sample and a representative enough sample. |
| MM: | Precisely. |
| DT:
51:00 | And there’s a real tension between having a large sample and a sample that accurately represents all the features of the case before the court. I suppose once you have enough subjective and objective features from your own particular case to narrow down the sample, you’ll probably end up with the sample that’s not particularly compelling in terms of its size and comprehensiveness. In terms of comparable cases, Matthew, do you have any tips on where to find those or what to look for in comparable cases that you’re going to put before the court? |
| MM:
| Comparable cases suffer the same problems that statistics do, because you’re putting forward a single case, or maybe two or three single cases, again if they’re helpful if they provide the sort of range that you think would be beneficial to your client, then they can be useful. But it is very rare that you’ll find a comparative case that presents a similar factual matrix that has the same subjective features as your client, and unless all of those things align there’s perhaps little use, or limited use, that a comparative case can have. |
| DT: | Michael do you have any views on comparable cases? |
| MV: 52:00
53:00
| Similar to Matthew’s experience, you’re hard pressed to find a case that’s got a similar factual matrix, similar history, but there are what are called guideline judgements which are significant decisions that tell you what roughly the starting point for certain offences are. For example, you might have an armed robbery offence and the guideline judgement of Henry which would tell you that if you’ve got aggravating features, the starting point for a guilty plea would be about five years plus and then you work backwards from that. And for cases like those, there is a lot of case law there, but planning one that is specific to your case is often hard. And there is a chance where they might not go to jail on a full-time basis, you’re looking really hard for a case that would persuade a judge to that effect. And sometimes you might find a case where they have exceptional subjective features where it might cause hardship on family, they have excellent prospects of rehabilitation, so sometimes you might not be looking for a case specifically to your own, but something that pushes the point in terms of trying to keep them out. |
| MM: | In respect to your question about where one might find comparable cases, the judicial commission website is a great resource. I think you need a login to access the stats, but they have offence packages, but also the public defenders’ website. |
| DT: | I’m glad you mentioned that. |
| MM: | It’s a great place to find comparable cases. |
| DT:
54:00 | Yeah, fantastic. That’s great for our listeners who might be wanting to use these tools but not sure where to find them. Now we’ve talked about negotiating facts, negotiating the contents of the form 1, preparing your evidence before hearing, it’s now time for the hearing. Let’s talk about some of the submissions that both Crown and defender council can make because as we were saying earlier in the episode there are some limitations to the kinds of submissions that the Crown can make. |
| MM: | Yes, as I mentioned earlier the Crown’s not permitted to suggest a range, at least it’s putting to side civil penalty sentences. The Crown is not permitted to suggest a range. That’s probably the primary restriction placed on the Crown. |
| DT: | But of course the defendant’s council can suggest a range but as we were saying earlier that range does need to be an appropriate one, one that’s not outlandish or doesn’t accord with the authorities and I suppose to an extent the statistics that are before the court. Michael do you have some tips about making a forensic judgement in terms of the range that you might recommend to a court? |
| MV: 55:00 | Normally I’d look at what the statistics would say and particularly where there are co-offenders involved where you might have an offence where there are multiple offenders and you would look at what penalties they have, what roles they had and if you’ve got a client where they’re further down the ladder, you’d suggest something to the magistrate that would reflect their role in the offence. Yeah, it’s a good question. |
| MM:
| My view is that you have to be reasonable. Your credibility as an advocate is crucial. It’s potentially the most powerful tool you have. So if you stand up and say ‘your Honour I want a section 10 for this incredibly serious offence,’ you will lose all credibility with that judicial officer. |
| DT: 56:00 | And not only for your own client who’s presently before the court, but for all of them in the future. |
| MM:
| For the future clients precisely. And no doubt that judge will tell everybody he or she sees that day. They continue to tell people, and your reputation is vital. If you are going to be asking for something that is particularly lenient, you obviously need a good reason for doing it, and in my view perhaps the appropriate approach would be to say ‘look your Honour this is what I’m asking for’ potentially at the outset. ‘I appreciate that it is a big ask but for these three or four reasons, which I’ll elaborate upon, I submit that it’s an appropriate request in this circumstance.’ And so that you can perhaps temper the judicial officer’s initial reaction to what you’ve asked. |
| DT: 57:00 | What you’ve described there Matthew I think highlights another issue in terms of the submissions that as defence counsel you make on sentence which is confronting some of the more challenging aspects of your case head on, rather than leaving them for the Crown to raise. In particular the objective seriousness of the offence. Do you have any tips in terms of how to frame that or navigate that exercise while still advocating for the most lenient sentence that sensibility allows? |
| MM:
58:00 | The assessment of objective gravity is probably where the Crown and the defence most often differ on sentence. It is, if your case is serious, if the conduct of your client is serious, there’s very little way around it, and it may be that your focus is upon the client’s subjective case as opposed to the objective features. I think while the absence of aggravating features doesn’t necessarily mitigate, I think it is helpful for that judicial officer when you’re placing the offence on a scale, to highlight perhaps the things that aren’t present. All the reasons why this is not as serious as perhaps another example. But sometimes there’s very little way to get around it, and it may simply be beneficial to step on the front foot and ‘Your Honour I appreciate that this is very serious, it’s really serious conduct and the offender appreciates that as well.’ |
| DT:
59:00 | A related challenge must be, particularly in the District or Supreme Court, rather than local court, confronting the reality that what you’re really making submissions on is the length of a custodial sentence rather than whether or not a custodial sentence will be imposed. I imagine that confronting that reality head on in your submissions can be very persuasive, but I also imagine that that’s quite a difficult conversation to have with your client as well. Michael do you have any insights in terms of informing your client before a sentence is handed down that they will be going into custody and you’re going to be making submissions on that basis? |
| MV:
1:00:00
1:01:00
1:02:00 | To answer your question, yes. You look at the maximum penalty available, particularly if there’s an applicable standard non parole period. And you would look at the statistics of the yardstick. And I’ve got a really good example actually where my very first murder case we ultimately pleaded guilty to a manslaughter charge and that involved a drug rip-off in an alley somewhere in inner west of Sydney where my client was going to buy some drugs from a drug dealer. At the last minute he pulled out a firearm, fired it and accidentally killed someone and he ran away, drove away from the scene. Leading up to the trial date we spoke to him about the strength of the prosecution case and likelihood of him going to jail. Also the length of full time jail imposed on him as well. What’s important is you need to advise him of the timing of the plea, but also manage his expectations of saying ‘look if you plead guilty, full-time imprisonment is almost a certainty, if anything it is a certainty.’ And it’d give him a rough starting point. Now being a criminal defence lawyer, every criminal defence lawyer’s worst nightmare is if punters seek advice from other inmates in jail. Because undoubtedly you’d find, your client would find another inmate who’d tell you oh for your murder charge you’d probably get five years in the bottom or something like that. And in this instance where he had pleaded not guilty and it was leading up to the trial date, he had received advice from us, from all these armchair experts in jail saying you’ll get 8 or 9 years in the bottom and anything above that is a bad result. Fortunately, when we came before the Supreme Court Justice, I briefed a really good counsel, prepared this case really well, he only received, I think it was, five years in the bottom. He was completely over the moon and you have to advise clients, you’ve got to put aside all this advice you’ve received from your inmates. You might have to raise with him the range of the penalty that he might receive. You’d look at everything on a case by case basis in terms of objective seriousness, the role, what he said in psychologist report, what is said in character references, and once you’ve received all that, you would tend to give them like an open range just so that they can keep their expectations |
| DT:
| I remember reading a paper by John Sutton, Public Defender, who said that the goal of defence counselling submissions on sentence is to leave nothing for the Crown to say. Is there anything the defence council needs to confront in that same way in terms of stealing thunder? Other than objective gravity and the possibility of a custodial sentence? |
| MM:
1:03:00 | Remorse is probably one of the key features. Remorse is not the binary concept. It may be that your client is not demonstrating particular insight into the offence and you know full well that the Crown is going to say something about that. But it may be that there’s good reason why the offender isn’t capable of reaching certain conclusions, and that may well have something to do with their background, their cultural background, things of that nature. So that is something to get on the front foot about, and I think what that quote is…exactly right. It really doesn’t matter whether it’s objective or subjective, it is important to get on the front foot, take the wind out of the Crown out of its sails somewhat and provide, at least provide, some sort of explanation why it’s not a particularly helpful thing in respect to your case. |
| DT:
1:04:00 | The last topic I want to talk about, before we finish up today, is appealing a sentencing decision. Something that’s available to both the crown and the offender, but I imagine there are very different considerations for the Crown and the offender in deciding to appeal the severity or lenience of a penalty. Now an accused can’t do worse on their own appeal that they did it at first instance, can they? |
| MM: | No, there’s the decision of Parker.[6] TIP: The decision Matthew’s referring to there is the 1992 decision of the NSW Court of Appeal in Parker v DPP. That means that the court is obliged to warn an accused that they are considering increasing the penalty and that gives him the opportunity, gives the accused or the offender the opportunity, to withdraw the appeal and run out the doors of the courtroom as quickly as possible, before the penalty is increased. So it’s a low risk proposition for the appellant. |
| DT: | For the Crown, in terms of appealing a sentence that seems to be too lenient, in what circumstances is the crown capable of doing that? |
| MM: 1:05:00 | The crown’s appeals ought to be limited by principle and are limited to matters of principle. |
| MV:
1:06:00 | I think what is paramount as a prosecutor is looking at public interest as well because if an offender gets a penalty which is manifestly inadequate, you can consult the powers and you’d seek advice as to whether it’s inadequate. File an appeal and that would be raised in a higher court. But from a defence point of view, if you look at the findings of the local court or District court or Supreme, let’s see whether those findings were open on the evidence which is usually the Crown bundle, sentence bundles, psychologists reports, character references, particularly fact sheets as well and you need to carefully scrutinise what was submitted on behalf of the offender’s case. And if the judge makes a finding which isn’t available, then sometimes you might find an appeal point and that’s, you obviously follow your appeal from there onto with District Court or the Court of Criminal Appeal. |
| DT: | We’ve talked about a lot of topics here today. We’ve talked about negotiating, the form 1, the facts, possibly a sentencing recommendation, we’ve talked about the kind of evidence that the Crown or the offender might prepare before a sentencing hearing and we’ve talked about difficult issues of making submissions at a sentencing hearing as well. Michael if there’s one tip you want to leave our listeners with about the sentencing process what would that be? |
| MV:
1:07:00
1:08:00 | You prepare and you prepare and you prepare. I had a matter yesterday where in the sentencing assessment report he’d asked the offender for his insight into his offending behaviour, that was the domestic violence case that I raised earlier, and he said in the sentencing assessment report that the victim deserved to be assaulted. Now it’s a textbook 101 instance where it’s better to know what not to say, then what to say. And when I spoke to him about why he said those things he said, ‘well what I tell you is what I also tell the parole officer.’ And I said to him, well what you tell me is privileged and it’s confidential and I don’t tell anyone and sometimes I give you advice along the way to guide you. So what you tell me might not necessarily be what you should tell the parole officer. And I gave him a simple exercise, I said to him well okay imagine you are the parole officer and I am Joe Blogs and I tell you that the victim deserved to be assaulted. How would you feel? And he said you know that’s terrible, why would anyone say that? And I said well isn’t that what you just said? It took him a few moments to realise that that was what he said but he eventually got there. So it’s very important I think to prepare to tell a good story and narrative so you want to get character references from the person who you’ve known for a long time, who you can speak to about the remorse, the contrition. And you’d want to get a very good psychologist report, you would consider any rehabilitation classes if they’ve got any drug and alcohol problems, if they have impulse control if they’ve tendency to be violent, guide them in the right direction to rehabilitate themselves and you’ll do whatever you can to demonstrate their remorse, their contrition, their insight into the offending because judges look at that very carefully and they assess whether the person is a danger to the community and that’s always a paramount focus. |
| DT: 1:09:00 | There’s this great quote, I can’t remember who said it, but ‘if advocacy is the art of persuasion then preparation is the tool of the artist,’ and I think if you’ve described that really well. Matthew is there one tip you’d like to leave our listeners with? |
| MM: | I agree with respect to preparation. Perhaps don’t be afraid to call your client if the opportunity arises. Yes there can be some danger, but that is often limited and the benefits, in my view, most often it outweighs those dangers. |
| DT:
| Thanks very much, and this has been a fascinating conversation it sounds like sentencing is a very difficult exercise and I’m glad I don’t have to do it every day but I’m sure those of our listeners who do are very grateful for your insights, so Michael and Matthew thank you so much for joining me on Hearsay. |
| MV: | Thank you. |
| DT:
1:10:00 | You’ve been listening to the Hearsay podcast. I’d like to thank our guests Matthew McAuliffe of Wardell Chambers and Michael Vo of Austere Legal for coming on the show. Now if you’re an Australian legal practitioner you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD point is self-assessed, but we suggest this episode constitutes an activity in the substantive law field. If you’ve claimed 5 CPD points or more for listening to audio content already this CPD year, you may need to access our multimedia content to claim further points from listening to Hearsay. Visit htlp.com.au for more information on claiming and tracking your points on our platform. The Hearsay team is Tim Edmeades who produced this episode, Kirti Kumar who researched it, Araceli Robledo who manages our marketing, and me David Turner your interviewer. Hearsay is masterminded by Nicola Cosgrove and Chris Cruickshank the co-founders of Assured Legal Solutions, making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au. |
[1] Barbaro v the Queen (2014) 253 CLR 58.
[2] CMB v Attorney-General (NSW) (2015) 89 ALJR 407 [38].
[3] R v Filippetti (1978) 13 A Crim R 335.
[4] R v Dookheea (2017) 91 ALJR 960 [14].
[5] The Queen v Olbrich (1999) 199 CLR 270.
[6] Parker v DPP (1992) 28 NSWLR 282.
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