Athans v The Queen - [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; R v Nguyen [2006] VSCA 184; Phillipou v The Queen [2020] SASCFC 21; Police v Chilton (2014) 120 SASR 32; R v Athans [2021] SADC 1; R v Brain (1999) 74 SASR 92; R v C (2004) 89 SASR 270; R v D’Arcy (2001) 122 A Crim R 268; R v Dorning (1981) 27 SASR 481; R v Howell [2018] SASCFC 12; R v Karnage [2019] SASCFC 82; R v Kikidis (2012) 112 SASR 148; R v Liddy (No 2) (2002) 84 SASR 231; R v Lutze (2014) 121 SASR 144; R v McIntee (1985) 38 SASR 432; R v O’Shea (1982) 31 SASR 129; R v Skinner (2016) 126 SASR 120; R v Smith (1987) 44 SASR 587; Rendic v The Queen (2021) 138 SASR 214, considered.

ATHANS v THE QUEEN
[2022] SASCA 71
Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA
THE COURT:
Introduction

This application for permission to appeal against sentence raises two grounds on which the question of permission has been referred for argument as on appeal:
1.The first ground concerns whether the applicant should be permitted to lead what is described as fresh evidence that was not available to the sentencing judge regarding the availability of treatment for Bell’s palsy whilst he is in custody.
2.The second ground concerns whether the sentencing judge erred in her approach to s 54 of the Sentencing Act 2017 (SA) (the Sentencing Act) because she placed too much weight on the applicant’s purported failure to accept responsibility for his conduct.
The applicant requires an extension of time, but that was not opposed. For the reasons that follow, permission to appeal should be refused.
The offending and the sentence imposed
Following a trial by judge alone, the applicant was found guilty 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).[1]
[1] R v Athans [2021] SADC 1.
The maximum penalty for each count was imprisonment for 10 years.
Pursuant to s 26 of the Sentencing Act, the sentencing judge imposed one sentence of two years imprisonment.
It was common ground that the applicant fell to be sentenced as a serious repeat offender. The applicant submitted to the sentencing judge that this was an appropriate case in which to make a declaration pursuant to s 54(2) of the Sentencing Act that it was inappropriate for him to be sentenced as a serious repeat offender. The sentencing judge disagreed and imposed a non-parole period equal to four-fifths of the head sentence, being 19 months and seven days.
After allowing for time spent in custody and on home detention, the head sentence became 20 months, and the non-parole period was fixed at 15 months and seven days.
The circumstances of the offending
On 3 April 2016, the applicant sent five images of an exposed penis and one image of a penis in underwear to DN (count 1). At the time, the applicant was 20 years of age and DN, 15 years. This offending occurred in connection with ongoing communication during which the applicant sent DN other images of an exposed penis. This conduct was uncharged.
Between 19 and 24 December 2016, the applicant sent an image of an exposed penis to RF (count 2). At the time, the applicant was 21 years of age and RF, 14 years.
On 16 January 2017, the applicant sent two images of a penis and a sexual meme to KW (count 3). At the time the applicant was 21 years of age and KW, 14 years. The first image was of a person in underwear holding an erect penis. The second image was of the same person with his underwear pulled down to his knees with his penis exposed. The meme depicted a person on a jet ski with the caption “When you want some head, so you jet ski out in the middle of nowhere and you tell her to suck it or swim back”.
On 13 and 14 July 2017, the applicant sent two images of an exposed penis to BD (count 4). At the time, the applicant was 22 years of age and BD, 16 years. The first image was of an exposed flaccid penis and the second image was of a person holding his erect penis. This offending was committed whilst the applicant was on bail for some of the earlier offending.
Overall, the offending occurred during a 15-month period, between April 2016 and July 2017 in the course of using social media, accompanied by sexual or flirtatious comments and, on occasion, requests to meet in person.
The circumstances of the offender
At the time of sentence, the applicant was 26 years of age and had no relevant prior convictions. He had completed school to year 12 and had operated a successful entertainment business and worked as a “disc jockey”.
Following arrest in August 2017, the applicant worked consistently for Olympic Industries commencing in March 2018. He was unable to operate his business or work as a disc jockey. In consequence of the pandemic, the applicant lost his job at Olympic Industries in April 2020.
The applicant has received unwavering support from family and friends, many of whom supplied character references and letters of support.
Following arrest, the applicant’s mental health declined and in November 2017 he attempted suicide. The sentencing judge was provided with a report from psychologist, Mr Luke Broomhall, who expressed the opinion that the applicant presented with prominent depressive symptoms, suggestive of an adjustment disorder with depressed mood.
In August 2019, in the context of significant stress and a nightmare, the applicant was diagnosed with Bell’s palsy and referred to a neurologist and, thereafter, to a neuro-physiotherapist. As to that condition, the sentencing judge was provided with:
1.A neuro-physiotherapy report dated 15 May 2021 from Ms Victoria Veitch.
2.A neuro-physiotherapy report dated 6 June 2021 from Ms Victoria Veitch.
3.A document entitled “INFORMATION FOR GENERAL PRACTITIONERS – A guide to the assessment and management of patients with Bell’s palsy”.
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).
An illustration of this last-mentioned point is provided by R v Smith. In that case, it was known that the applicant had been diagnosed with having antibodies to the AIDS virus, but he was showing no sign of progressing to disease. It was acknowledged that this situation might change if the applicant was subjected to “any extended period of stress”.[9] Chief Justice King did not suggest that the sentencing judge had been unaware of the applicant’s diagnosis. Rather, the further evidence was admitted to show “how serious the appellant’s state of health had been when he was sentenced”.[10] Whilst it is a little unclear, it seems that the sentencing judge in R v Smith did not demonstrate a clear understanding of the true implications of the applicant’s AIDS diagnosis.
[9] R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed).
[10] R v Smith (1987) 44 SASR 587, 588-589 (King CJ, with whom Cox and O’Loughlin JJ agreed), citing R v Ferrua (1919) 14 Cr App R 39.
The exercise of the discretion to admit fresh or further evidence must take into account both the public interest in the finality of litigation as well as the prospect that it will have an important bearing on the outcome of the case.[11] It is generally accepted that an applicant seeking to adduce fresh or further evidence will usually satisfy three conditions before that evidence will be received on appeal:[12]
1.It must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing;
2.The evidence, if adduced, would probably have an important influence on the result, though it need not be decisive; and
3.The evidence must be apparently credible.
[11] R v Dorning (1981) 27 SASR 481, 485 (Walters, Zelling and Williams JJ).
[12] R v Dorning (1981) 27 SASR 481, 485-486 (Walters, Zelling and Williams JJ); R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed); Macfarlane v The Queen [2022] SASCA 46, [33]-[38] (Livesey P).
The authorities have described the second requirement in various ways, which include whether the evidence, if adduced, would have an important influence or bearing on the outcome or, at the very least, substantially alter the relative weight of the material that was before the sentencing judge.[13]
[13] R v C (2004) 89 SASR 270, [32]-[34] (Doyle CJ, with whom White J agreed).
More recently, after reviewing the various authorities, the Court of Criminal Appeal reiterated that “the power of the court to receive fresh evidence cannot be fettered by hard and fast rules”.[14] In that case it received evidence that the applicant’s wife had been diagnosed with a terminal illness.[15] Indeed, King CJ had described the approach in very broad terms in R v McIntee:[16]
The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand. With this in mind, the members of the Court inspected the psychiatric report which Mr. Tilmouth desired to tender. We satisfied ourselves that the report added little or nothing to the material which was before the sentencing Judge. We refused to allow the report to be given in evidence.
[14] Phillipou v The Queen [2020] SASCFC 21, [60] (Kourakis CJ, with whom Stanley and Doyle JJ agreed) citing Neill v Police [1999] SASC 270, [21] (Doyle CJ) with approval.
[15] Phillipou v The Queen [2020] SASCFC 21, [67] (Kourakis CJ, with whom Stanley and Doyle JJ agreed).
[16] R v McIntee (1985) 38 SASR 432, 435 (King CJ).
It remains unclear whether, if admitted, the evidence will be treated as relevant material which the sentencing court failed to consider, permitting resentence, or if the question is whether the material demonstrates that the sentence imposed was manifestly excessive:[17]
[17] R v Brain (1999) 74 SASR 92, [92]-[93] (Doyle CJ, with whom Bleby and Wicks JJ agreed); R v C (2004) 89 SASR 270, [32] (Doyle CJ, with whom White J agreed); R v Kikidis (2012) 112 SASR 148, [25] (Kourakis J, with whom Doyle CJ and Vanstone J agreed).
Having admitted the fresh evidence, what approach does the Court take in deciding whether to allow the appeal? In Smith at 589 King CJ appears to have taken the approach that, the evidence having been admitted, it was simply a matter of reconsidering the sentence imposed in the light of all the circumstances, including the further information. In Goodwin (1990) 51 A Crim R 328 the Court of Criminal Appeal of New South Wales admitted evidence of matters not before the sentencing judge, and concluded that intervention was justified (at 334) because:
“This material could well have had a significant effect on the sentencing judge, had it been placed before him.”
In Eliasen (1991) 53 A Crim R 391 the Court of Criminal Appeal of Victoria said (at 394):
“It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.
It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below ...”
The Court went on to say (at 396):
“... once the evidence is admitted the question no longer is one as to whether the sentencing judge has erred in the exercise of his sentencing discretion. The question then which is for this Court to determine is whether on the material then before it a different and, if so, what sentence should be substituted for that passed by the sentencing judge.”
In Kikidis v The Queen this uncertainty was not regarded as settled, and it remained an open question:[18]
Surprisingly, in my view, it appears to be an open question whether, if received, the further evidence is to be treated as relevant material, which the sentencing court, ex hypothesi, failed to have regard to, allowing the Full Court to resentence, or whether the question is only whether, when measured against the material before the sentencing court and the further evidence, the sentence is manifestly excessive.[19]
[18] Kikidis v The Queen (2012) 112 SASR 148, [25] (Kourakis J, with whom Doyle CJ and Vanstone J agreed).
[19] R v C (2004) 89 SASR 270, [32] (Doyle CJ, with whom White J agreed); R v Brain (1999) 74 SASR 92, [92]-[93] (Doyle CJ, with whom Bleby and Wicks JJ agreed).
In our view, if the Court of Appeal admits the further evidence, it must review the original sentence and determine whether, with the benefit of the further evidence in the context of all of the material before the Court, the sentence may be said to be “affected by error such that the defendant should be re-sentenced”, as is required by s 158(7) of the CPA. When conducting that review, the Court is not constrained by having to identify error such as manifest excess. Rather, it is sufficient that the sentence is erroneous in the sense that the Court forms the view that a different sentence should be imposed. To the extent that s 158(7) assumes error of the kind contemplated by House v The King,[20] the original sentence may be said to have been passed without regard to relevant evidence, or on the basis of a material error of fact.
[20] House v The King (1936) 55 CLR 499.

This approach is similar to but not quite the same as that which applies in Victoria where, since R v Nguyen, [21] the Court of Appeal has articulated six factors, the last of which is whether “on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice”.[22] Whilst that language echoes the third limb of the common form criminal conviction appeal provision, s 158(1)(c), that is not the language of s 158(7) of the CPA.
[21] R v Nguyen [2006] VSCA 184, [36] (Redlich JA, with whom Maxwell P and Neave JA agreed).
[22] See, recently, Langton (a pseudonym) v The Queen [2022] VSCA 79, [16]-[19] (Maxwell P, McLeish and Macaulay JJA).
It is now necessary to review the further evidence, having regard to the evidence that was before the sentencing court, in order to determine whether it should be received, as well as whether its admission would warrant a different sentence or a different approach to s 54 of the Sentencing Act.
The evidence that was before the sentencing judge has already been described. It must be emphasised that the reports from Ms Veitch made it clear that her position was that ongoing treatment should be provided but that she would not consult at prison. To this should be added a letter which was provided by the Director of the South Australia Prison Health Services, which said:[23]
SA Prison Health Service ability to manage Bell’s Palsy in a prison setting include:
·Access to regular physiotherapy services.
·Mr. Athans can elect to continue to pay to see his private Neurophysiotherapy at the prison as a private patient; this can be in person at the prison or via video conference, with appropriate clearances from the Department for Correctional Services.
·Any medications Mr. Athans is prescribed for the treatment of his Bell’s Palsy can be administered by nursing staff in the prison setting (providing the medications meet the Formulary guidelines and clinical protocols).
·Access to nursing staff for daily eye drops and micropore tape to keep eye closed at night.
·Access to medical staff for regular reviews and referral to specialists if required.
[23] AB 41-42.
The applicant’s case before this Court proceeded on the assumption that this correspondence represented some form of assurance regarding the treatment that would be provided to the applicant by prison authorities. That assumption is wrong. It is falsified by the reference in the letter to the applicant continuing to pay for his own treatment. It is also important to recognise that any ongoing

neuro-physiotherapy treatment was also expressly made subject to the applicant obtaining “appropriate clearances from the Department for Correctional Services”.
With the benefit of this information, the sentencing judge acknowledged that the applicant would not receive “optimum treatment in custody” and this was likely to “lead to the deterioration” of the applicant’s condition and mental health which, she accepted, had been “compromised in recent years”.
The new material is contained in affidavits from the applicant and his solicitors. It is sufficient to outline their general effect.
Following incarceration in June 2021, the applicant described being told that he could not obtain treatment for his Bell’s palsy at the Adelaide Remand Centre and that all he was prescribed for significant, ongoing pain was Panadol, which he took frequently. In July 2021, he was transferred to the Mount Gambier Prison and there he consulted a nurse and a doctor who could not assist with Bell’s palsy treatment. In November 2021, the applicant was transferred to the Port Lincoln Prison. He commenced a four-month Sexual Behaviours Course (Moderate). Again, he consulted with a nurse and again no treatment could be offered beyond a telephone consult with a physiotherapist.
The applicant described very significant ongoing pain. He explained that he had received advice from Ms Veitch that this pain was nerve related and no medication would assist. He also explained that he has declined anti-depressant medication because he did not wish to be medicated for depression “even though the pain and visual effect of my Bell’s Palsy is having a marked impact upon my mental health”. The applicant said he had been taunted and ridiculed because of the way he looks.
The applicant’s solicitor deposed to the fact that no neuro-physiotherapist contacted by her or the applicant’s father was prepared to provide treatment at a prison facility. She deposed to the possibility that, if based in Yatala Labour Prison, the applicant could consult with his usual neuro-physiotherapist if her rooms were assessed as suitable by the Department for Correctional Services.
The applicant’s desire to complete the Sexual Behaviours Course at Port Lincoln Prison made it more difficult for him to access private

neuro-physiotherapist assistance in Adelaide. That, however difficult and creditable, was a decision for the applicant to make.
The evidence that there is no suitable neuro-physiotherapist assistance in Mount Gambier was only obtained in August 2021, after the applicant moved there in July 2021 (he was there for around five months or so). There is no evidence that the applicant had been thwarted in securing public outpatient treatment. Indeed, there is no evidence that the applicant had been thwarted in securing private neuro-physiotherapist assistance, whether in Port Lincoln or in Adelaide. To be clear, there is no evidence that the applicant has identified a neuro-physiotherapist with whom he can consult in Port Lincoln or in Adelaide but that he has been refused permission to do so.
The difference which is highlighted by the applicant appears to be between obtaining virtually no treatment at all (on the evidence) and obtaining sub-optimal treatment (as the sentencing judge assumed) for Bell’s palsy. The explanation for that difference lies in a combination of the refusal of any neuro-physiotherapist to provide treatment at a prison and, possibly, the applicant’s choice to participate in the Sexual Behaviours Course in Port Lincoln (although there is no evidence that there was no suitable private treatment available in Port Lincoln).
The respondent highlighted the statutory discretion in the Chief Executive to transfer prisoners, s 25(1) of the Correctional Services Act 1982 (SA). The implication is that the applicant could, at the time of sentence, have anticipated being placed in any one of a number of facilities, particularly facilities that offered rehabilitation courses. The applicant could have made inquiries and ascertained the extent to which he could obtain the requisite private neuro-physiotherapy treatment and advised the sentencing court accordingly. Whatever expectation the sentencing judge may have had as to the likely availability of treatment, this was always subject to the implications of any exercise of the Chief Executive’s discretion under s 25(1).
Whilst the applicant’s distress associated with his mental health issues and virtually untreated Bell’s palsy is understandable, it cannot be said that these issues were unknown to the sentencing judge or that her Honour did not take them into account. In particular, the applicant’s treatment for Bell’s palsy has always been dependent on securing ongoing, private assistance at the applicant’s own cost and only after securing appropriate clearances from the Department for Correctional Services.
In these circumstances the evidence is far from clear that no treatment for Bell’s palsy has been available, as distinct from that it has been difficult to access. It has not been shown that the difficulties encountered could not have been foreseen and evidence about them put before the sentencing judge. However, even if admitted, this evidence would not have had an important influence or bearing on the outcome, or alter the weight given to this aspect of personal hardship. Most importantly, even if admitted, this evidence does not warrant the imposition of a different sentence. It would not warrant taking a different approach to the exercise of discretion under s 54 of the Sentencing Act.
The Court declines to receive the further evidence. Permission to appeal this ground should be refused.
Appeal ground 2: whether the s 54 discretion miscarried
By this ground it is contended that the sentencing judge erred in the exercise of her discretion under s 54(2) of the Sentencing Act when determining whether the applicant’s personal circumstances were “so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence”.
As it was common ground that the applicant was a “serious repeat offender” within the meaning of s 53, the court was obliged to fix a mandatory minimum non-parole period of four-fifths of the head sentence unless it made a finding regarding “exceptional” circumstances within s 54(2) of the Sentencing Act:
54—Sentencing of serious repeat offenders
(1) The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
(2) However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
For the purposes of this appeal, it is not necessary to review the recent cases on this provision.[24] The question raised by this ground of appeal is simply whether a specific error was made in the exercise of discretion.[25] If a specific error was made, the exercise of discretion is vitiated and it must be re-exercised. If no specific error was made, it is not for this Court to substitute the order it might have made.[26] The statutory discretion was reposed in the sentencing judge, not this Court.
[24] R v Karnage [2019] SASCFC 82, [64]-[70] (Nicholson J, with whom Kelly and Hinton JJ agreed); Knight v The Queen (2021) 138 SASR 156; Rendic v The Queen (2021) 138 SASR 214.
[25] R v Skinner (2016) 126 SASR 120, [83]-[86] (Doyle J, with whom Kelly J agreed) where, in the context of whether to suspend it was said “the power to suspend where “exceptional circumstances” exist does involve the exercise of a discretion, at least in the sense that appellate challenge to the exercise of that power will be governed by the principles of appellate restraint in House v The King [(1936) 55 CLR 499, 504-505]”.
[26] House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
The sentencing judge declined to make a declaration under s 54(2) for the following reasons:[27]
Your personal circumstances invite some sympathy, in particular, your youth and lack of relevant prior convictions. You developed Bell’s palsy in August 2019 and your condition will not receive optimum treatment in custody which is likely to lead to the deterioration of your condition and mental health which has been compromised in recent years. You have the ongoing support of your family and you are a person who has been gainfully employed and contributed in a positive way to the community. However, I am not satisfied that your personal circumstances are so exceptional as to outweigh the considerations of the protection of the safety of the community and personal and general deterrence. You have taken no responsibility for your unlawful conduct. Further, count 4 was committed whilst you were on bail for some of the earlier offending and was committed in flagrant breach of your bail agreement. As I have said it is difficult to have any real confidence in your prospects of rehabilitation. In those circumstances I cannot say that your personal circumstances are so exceptional as to outweigh the considerations of the protection of the community and personal and general deterrence. I decline to make a declaration.
[27] AB 187.
Earlier, the sentencing judge remarked:[28]
You have not taken any responsibility for the offending and you continue to maintain your innocence. In those circumstances I am guarded about your prospects of rehabilitation.
[28] AB 185.
The argument focussed on the statement that the applicant had “taken no responsibility for your unlawful conduct”. It was not disputed that at the time of sentence the applicant had not accepted the verdicts and had not expressed any contrition or remorse.
The applicant contends that the sentencing judge placed undue weight on her reservations regarding the applicant’s rehabilitation prospects. He submitted:[29]
It is respectfully submitted that had appropriate weight been given to that circumstance, the [sentencing judge] ought reasonably to have determined that the Applicant’s personal circumstances were so exceptional as to outweigh considerations of the protection of the community and personal and general deterrence.
[29] Applicant’s Written Submissions, [56].
The applicant cited authorities which demonstrate that a failure to accept responsibility for offending conduct is not an insurmountable barrier to rehabilitation. He relied on the following observations of Chesterman J in R v D’Arcy,[30] cited with approval by Mullighan J in R v Liddy (No 2):[31]
A court is likely to have more confidence that an offender has reformed where there is a demonstration of remorse arising from a realisation of personal wrongdoing and a sense of guilt, but I do not think it right that rehabilitation may only be proved in that manner. Other factors such as those described by Ipp J, particularly positive contributions made by the offender to the general welfare of the community, are indicative of rehabilitation. Remorse, when present, is conventionally regarded as a reason to mitigate a sentence, but that is so whenever the offender is sentenced. Its absence does not mean that one should disregard evidence of a substantial period of law-abiding and socially useful living.
[30] R v D’Arcy (2001) 122 A Crim R 268.
[31] R v Liddy(No 2) (2002) 84 SASR 231, [49].
Whilst the applicant acknowledged that the sentencing judge was also concerned about the offending committed whilst on bail, he contended that there was evidence of rehabilitation before sentence given his good work history.[32]
[32] See R v Howell [2018] SASCFC 12, [35] (Kourakis CJ, Nicholson and Doyle JJ); Kuchar v R [2001] SASCFC 127.
It is well recognised that an assertion regarding excessive or inadequate weight regarding a factor considered in the exercise of a discretion will rarely demonstrate appealable error:[33]
It is not an appealable error, in accordance with the principle in House v The King, that a sentencing judge has placed too little or too much weight on one or more of the applicable sentencing considerations. It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways.
Over familiarity with the decision in House v The King can at times obscure the strictness of the limited grounds for the appellate interference it prescribes. The grounds on which a discretion can be set aside are analogous to the grounds of judicial review. Neither the exercise of a judicial discretion, nor the making of an administrative decision, are vitiated by giving a relevant matter less or more weight than the judge before whom the decision is impugned would have given it. ...
The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King.
(footnotes omitted)
[33] Police v Chilton (2014) 120 SASR 32, [17]-[19] (Kourakis CJ with whom David J agreed); see also Munda v Western Australia (2013) 249 CLR 600, [33]-[35] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ); R v Lutze (2014) 121 SASR 144, [47] (Vanstone and Parker JJ).
It must also be emphasised that the sentencing judge said that it was difficult to have confidence in the applicant’s prospects for rehabilitation, not that there were no prospects. The difference is important. The sentencing judge clearly had regard to a range of matters when exercising her discretion and the weight to be given to each was a matter for her Honour to determine within the discretion conferred by s 54 of the Sentencing Act. It was obviously relevant that the applicant continued to maintain his innocence and had offended whilst on bail. These matters, together with the absence of contrition or remorse, provided a perfectly proper basis to question the applicant’s rehabilitation prospects.
It is not suggested that, given the applicant’s personal circumstances, a declaration had to be made under s 54(2) and that it comprised an outcome error in declining to do so.[34] It cannot be said that the sentencing judge erred in the exercise of her discretion on the basis asserted.
[34] House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
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.