Barker v POLICE

[2005] SASC 363

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BARKER v POLICE

Judgment of The Honourable Justice Vanstone

20 September 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY

Appeal against sentence - complaint that penalty should have been imposed without conviction - application to present fresh evidence and to extend time within which to appeal - principles applicable to fresh evidence - fresh evidence received - appeal allowed.

Criminal Law (Sentencing) Act 1988, s 16, referred to.
R v Smith (1987) 44 SASR 587; R v Dorning (1981) 27 SASR 481; Brain v The Queen (1999) 74 SASR 92, considered.

BARKER v POLICE
[2005] SASC 363

Magistrates Appeal

1. VANSTONE J:     Andrew Robert Barker appeals against his penalty in the Magistrates Court following a plea of guilty to theft.  He stole a ring at his workplace, not long after his eighteenth birthday.  His only complaint is as to the recording of a conviction.

2. The appellant seeks an extension of time for the lodging of the Notice of Appeal.  It is some nine months out of time.  He also asks that I receive fresh evidence, marshalled to support the contention that no conviction should have been imposed.

3. The questions I have to decide are whether the fresh evidence should be received;  whether, if that evidence had been available it would have had an impact on the result and if so, whether the time for appeal should be extended.

4. Fresh evidence, that is, evidence of facts which were in existence at the time of penalty, but were not known to the sentencing court, may be received upon an appeal against sentence:  R v Smith (1987) 44 SASR 587. Generally, such evidence will not be received unless there is good reason why it was not previously presented, it is likely to have had an important influence on the disposition of the matter and it is apparently credible: R v Dorning (1981) 27 SASR 481.

5. I consider that the evidence sought to be adduced in this case satisfies these criteria.  It consists of an affidavit of the appellant, together with a report of his treating psychiatrist.  Together, they detail a sequence of unfortunate, if not tragic events, which have befallen some of those closest to the appellant since his seventeenth birthday.  These are personal matters and it is not necessary in these reasons to relate them.  It is clear from the report that from a period prior to the offence the appellant was suffering from a major depressive illness precipitated by these events.  That tends to explain not only the theft - which was completely out of character - but also the appellant’s failure to advise anyone that he had been charged, to seek legal representation and to put any of the relevant material before the Magistrate.  Had he done any of those things then it is likely that the offence would have been viewed more sympathetically. 

6. For these reasons I consider it is appropriate to receive the fresh evidence.  Once that evidence is before the Court the exercise upon appeal is no longer one of isolating an error in the sentencing process.  Indeed, in my mind none could be isolated.  Rather, the Court must reconsider the sentence in the light of the original material before the Magistrate together with the fresh evidence:  Brainv The Queen (1999) 74 SASR 92, 105-107 per Doyle CJ. Having done so, I consider that it is appropriate to extend time and to allow the appeal. In place of the penalty originally imposed I would proceed via s 16 of the Criminal Law (Sentencing) Act 1988 and impose a fine without recording a conviction.  I note that some of the fine has already been paid.

7. Therefore the orders are:

   1.     extend time within which to appeal to 1 August 2005;

   2.     allow appeal;

   3.     set aside penalty imposed by the Magistrate;

   4.impose, in its place, without recording a conviction, a fine in the sum of $1,500.