The Office of the Director of Public Prosecutions has been accused of ‘blatant judge-shopping’ after seeking that a District Court Judge recuse himself from presiding over a sentence proceeding involving two co-accused young persons.

The recusal application concerned District Court Judge Sean Grant. The co-offenders are AF, JT, and BP (referred to under initials as the offences occurred when they were under 18, namely 15 years old).

The co-accused and the victim in the matters were all residential boarding students at a regional High School, living together in a dormitory.

The allegations regarding the co-offenders involved aggravated sexual assault in which JT inserted a lock into the victim’s anus, on BP’s instruction, as AF assisted in holding him down.

It also involved a separate incident in which BP dry humped the victim whilst he was on all fours, with this incident filmed and disseminated to a year 10 Snapchat group by AF.

BP was sentenced first on 14 September 2023. He was convicted and received a 3-year Community Correction Order (CCO) for each offence which both carried conditions to not commit any further offences and appear before the Court if required to do so.

CCOs are essentially good behaviour bonds, in which a conviction must be formally recorded, with various conditions that may be imposed. They are imposed in circumstances where the offence does not warrant a sentence of imprisonment but is too serious for a lower-level penalty such as a conditional release order which may be imposed with or without conviction.

The sentence date for JT and AF was set down for 13 February 2024.

Prior to this date, the Director of Public Prosecutions made a complaint to the Judicial Commission (dated 19 December 2023) in which she advised that she “directed her staff to apply for [Judge Grant’s] recusal from sentencing AF” ultimately stating that a fair-minded lay observer might reasonably apprehend that Judge Grant might not bring an impartial and unprejudiced mind to sentencing AF.

This application for Judge Grant to recuse himself from sentencing AF was ultimately accompanied by an application for his Honour to recuse himself from sentencing JT.

Judge Grant held that: “the Crown’s application is none other than blatant judge shopping and brings the administration of justice into disrepute.”

Can a Judge be Disqualified from Presiding Over a Case in Court?

Judge shopping essentially refers to where a party attempts to avoid or seek for a particular judicial officer to hear a matter, as they believe it may produce a certain outcome.

During the course of the application, it was revealed in oral submissions that the “real motive” behind the application was that the Crown had taken the view that the sentenced imposed in BP’s matter was ‘lenient’, and the Crown were concerned that ‘lenient’ sentences would be imposed on JT and AF.

Judge Grant explained: “during the course of oral submissions, it became apparent as to what the real motive of the Crown was in bringing the applications. Mr Kerr [the Crown Prosecutor] said that the sentence I imposed in BP was lenient, and the Crown was concerned that I would impose lenient sentences on JT and AF.”

His Honour found that the Crown had been unable to identify what may lead him to decide the cases other than on their “legal and factual merits.”

The test for determining whether a judge is to be disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question that the judge is required to decide.

It involves two steps, namely the identification of what is said that might lead the judge to decide a case other than on its legal and factual merits, and an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

The prosecution attempted to argue that this was highlighted by emails sent under Judge Grant’s direction by his associate to the legal representatives of AF, and the provision of the sentence judgement in BP to the legal representatives of AF and JT.

However, the emails were ultimately deemed to be ‘case management’ in that the correspondence involved both parties and questions as to whether a trial would be proceeding, as AF had initially pled not guilty before negotiations occurred between the parties.

The argument with respect to the provision of BP’s sentence judgement was dismissed noting that where a co-accused is sentenced, the Crown, as a matter of disclosure, is required to provide those sentencing remarks to a co-accused.

Therefore, the application failed in that there was no factors which might lead a judge to decide a case other than on its legal and factual merits, nor an articulation of any logical connection between these factors and a deviation from deciding a case on its merits.

Judge Grant summarised: “the Director’s application is misconceived and without merit. Never in my 35 years in the law have I seen such a blatant attempt to judge shop. I refuse the application to recuse myself.”

It is important to note that the authorities prescribe that it is ‘highly desirable’ that co-offenders are sentenced by the same judge, due to the principle of parity of sentencing between co‑offenders.

As set out in the case of Green v The Queen (2011) 244 CLR 462, the parity principle is based on the concept that like cases should be treated alike and different cases differently.

This case also provides that the avoidance of unjustifiable disparity between the sentences imposed on offenders involved in the same criminal conduct or a common criminal enterprise is a matter that is ‘required or permitted to be taken into account by the court’, under the s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin