Athans v The Queen

Case [2022] SASCA 71

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ATHANS v THE QUEEN

[2022] SASCA 71

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

28 July 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - TO ADMIT NEW EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

On 15 June 2021, the applicant was found guilty following a trial by judge alone of four counts of procuring a child to engage in, or submit to, sexual activity, contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA). Before the applicant’s trial commenced, he had been diagnosed with Bell’s palsy in the context of significant stress.

On 25 June 2021, the applicant was sentenced by a judge of the District Court to two years’ imprisonment. After allowance for time served on remand and on home detention bail, the sentence was reduced to 20 months. The sentencing judge declined to make a declaration that it was not appropriate to sentence the applicant as a serious repeat offender and fixed a non-parole period of 15 months pursuant to s 54(1) of the Sentencing Act 2017 (SA) (the Sentencing Act), being four-fifths of the head sentence.

The applicant sought permission to appeal his sentence on the grounds that:

1.He should be permitted to lead fresh evidence that was not available to the sentencing judge regarding the availability of treatment for his Bell’s palsy; and

2.The sentencing judge erred in her approach to s 54 of the Sentencing Act.

Held (the Court) refusing to receive the further evidence and refusing permission to appeal:

1.The applicant has not shown that his difficulties in obtaining treatment for his Bell’s palsy could not have been foreseen and evidence about this put before the sentencing judge.

2.Even if admitted, it is unlikely that the further evidence would have had an important influence or bearing on the outcome, or alter the weight given to this aspect of personal hardship. The further evidence does not warrant the imposition of a different sentence.

3.No error has been demonstrated in the sentencing judge’s exercise of her discretion to decline to make a declaration pursuant to s 54(2) of the Sentencing Act.

4.      Extension of time to seek permission to appeal against sentence, granted.

Sentencing Act 2017 (SA) ss 26, 53, 54; Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a); Criminal Procedure Act 1921 (SA) ss 157(1)(iii), 166; Correctional Services Act 1982 (SA) s 25(1), referred to.
House v The King (1936) 55 CLR 499; Knight v The Queen (2021) 138 SASR 156; Kuchar v R [2001] SASCFC 127; Langton (a pseudonym) v The Queen [2022] VSCA 79; Macfarlane v The Queen [2022] SASCA 46; Munda v Western Australia (2013) 249 CLR 600;

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AGLC
Athans v The Queen [2022] SASCA 71
Case
[2022] SASCA 71
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the applicant, Athans, before the Supreme Court of South Australia, Court of Criminal Appeal. The dispute centred on whether the Court of Appeal should consider evidence of events occurring after the original sentence was imposed, specifically concerning the applicant's ongoing treatment for Bell's palsy. The applicant argued that this post-sentencing evidence could illuminate the true significance of facts that were before the sentencing judge.

The primary legal issue before the Court was whether it possessed the power to admit and consider further evidence relating to events that transpired after the imposition of sentence, and if so, under what circumstances. The Court was required to determine if such evidence could demonstrate an error in the sentencing judge's original decision, particularly in light of the statutory provisions governing appeals and the admission of new evidence. The respondent contended that no fresh evidence had been presented and that the proposed evidence did not demonstrate a material change in circumstances.

The Court acknowledged that appeals by way of rehearing are generally confined to the materials before the sentencing court. However, it also recognised its power under section 166 of the Criminal Procedure Act 1921 (SA) to receive further evidence if deemed necessary or expedient in the interests of justice. The Court drew a critical distinction between evidence of events predating sentence and those occurring subsequently. While post-sentencing events typically do not, on their own, establish an error by the sentencing judge, they may be admitted if they cast new and significant light on matters relied upon by the sentencing court, particularly if those developments were not reasonably anticipated at the time of sentencing. In this instance, the Court found that the proposed further evidence did not meet this threshold for admission.

Consequently, the Court of Appeal refused permission to appeal on this ground. The applicant was granted an extension of time to seek permission to appeal against sentence, but permission itself was ultimately refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Veitch expressed the opinion that the applicant required further neuro-physiotherapy consultations, no more than four weeks apart, involving dry needling into the left side of the face, remedial massage and an exercise regime for rehabilitation of facial function. Without treatment, the applicant was likely to experience deterioration in the function and appearance of his face including a reduction in eye opening. Whilst Ms Veitch warned about the risk that the condition may become permanent, her opinion seemed to be that the applicant would never fully recover from his facial palsy.Appeal ground 1: further evidence and the treatment of Bell’s palsy The applicant contends that the Court of Appeal may have regard to events occurring since the imposition of sentence if these show the true significance of facts in existence at the time of sentence.[2] [2] R v Dorning (1981) 27 SASR 481, 485 (Walters, Zelling and Williams JJ); R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed); R v Brain (1999) 74 SASR 92, [86] (Doyle CJ, with whom Bleby and Wicks JJ agreed); R v C (2004) 89 SASR 270, [19] (Doyle CJ, with whom White J agreed); Phillipou v The Queen [2020] SASCFC 21, [46]-[47] (Kourakis CJ, with whom Stanley and Doyle JJ agreed). The respondent contends that there is no fresh evidence, and the proposed further evidence does not disclose any material change in circumstances. The appeal to this Court by s 157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA) (CPA) is by way of rehearing and the court is ordinarily confined to the materials available to the sentencing court. By s 166 of the CPA the court is empowered, if it thinks it necessary or expedient in the interests of justice, to receive further evidence.[3] That power is ancillary to the appellate jurisdiction of the Court of Appeal.[4] [3] Macfarlane v The Queen [2022] SASCA 46, [33]-[38] (Livesey P).[4] R v Kikidis (2012) 112 SASR 148, [24] (Kourakis J, with whom Doyle CJ and Vanstone J agreed). It is important to recognise that a “clear distinction” must be drawn between evidence of events occurring before sentence and evidence of events occurring after sentence.[5] Whilst the Court of Appeal cannot usually intervene on the basis of events occurring after sentence,[6] further or fresh evidence may be capable of demonstrating that the approach of the sentencing judge was erroneous, either because the proposed evidence was in existence and material but not known to the sentencing judge, or because it is capable of putting what was known to the sentencing judge in a new light.[7] As was explained by Doyle CJ in R v C:[8]… usually evidence of events occurring after sentence is passed is incapable of demonstrating an error by the sentencing judge that would enliven the power to set aside a sentence as erroneous, in exercise of the power conferred by s 353(4) of the CLCA. However, such evidence may establish that a matter that the sentencing court treated as material is now to be seen in a new light, or has a new significance, as a result of events occurring after sentence that were not anticipated and, usually, could not reasonably have been anticipated. In such cases, because the evidence of matters occurring after the passing of sentence will throw new and significant light on a matter relied on by the sentencing court, the evidence will be admitted and can be acted on.[5] R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed).[6] R v O’Shea (1982) 31 SASR 129.[7] R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed).[8] R v C (2004) 89 SASR 270, [32] (Doyle CJ, with whom White J agreed).

Decision

Reasons for decision

Permission to appeal this ground should be refused.Conclusion In the circumstances the order of the Court should be as follows: The applicant is granted an extension of time to seek permission to appeal against sentence. Permission to appeal sentence is refused.

Ratio Decidendi

Legal Principle Established

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