SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
C, TL v POLICE
[2010] SASC 115
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kelly)
27 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS
Appellant youth pleaded guilty to rape - sentenced to 15 months detention - appeal against sentence - whether sentence manifestly excessive - whether Judge properly considered the factors relevant to the sentencing of young offenders and the objects in s 3 Young Offenders Act 1993 - whether Judge erred in failing to suspend the sentence - whether the Judge failed to give adequate reasons.
Held: Judge had proper regard to the circumstances of the offender and the seriousness of the offence - brevity of sentencing remarks not indicative of error - Judge had appropriate regard to the objects in s 3 Young Offenders Act 1993 - failure to suspend the sentence not an error - sentence was not manifestly excessive - appeal dismissed.
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - TO ADMIT NEW EVIDENCE
Appellant applied to adduce fresh evidence of events occurring after sentence at the hearing of the appeal - whether appeal Court should have regard to material not before sentencing Jugde - whether fresh evidence was admissible - observations as to principles applicable to reception of fresh evidence on appeal against sentence.
Held (per Kelly J, White J concurring): a clear distinction is to be made between fresh evidence that sheds light on matters before the sentencing Judge and evidence as to events occurring after sentence - the evidence sought to be admitted at the appeal did not shed new light on the material before sentencing Judge - the material was not admissible as fresh evidence.
Per Gray J: psychiatric report in relation to appellant threw new light on the appellant's circumstances at the time of sentencing - evidence was admissible and should be received.
CRIMINAL LAW - PROCEDURE - BAIL - AFTER CONVICTION - GENERALLY
Appellant granted bail pending appeal against sentence – observations on principles which apply in respect of applications for bail pending outcome of appeals against sentence.
Young Offenders Act 1993 ss 3, 23(4), 41; Criminal Law Consolidation Act 1935 ss 353, 359; Mental Health Act 1993 (SA); Children's Protection and Young Offenders Act 1979 s 7; Criminal Law (Sentencing) Act 1988 s 3A, 31A, 38(2a); Youth Court Act 1993 (SA); Bail Act 1985 ss 5, 10, referred to.
R v C (2004) SASR 270; R v Smith (1987) 44 SASR 587; R v O'Shea (1982) 31 SASR 129, applied.
Beshara and Kleut v Paphitis (1987) 136 LSJS 16; R v Flanigan (unreported judgment, Supreme Court of South Australia, Debelle J, 25 November 1996, S5937); R v Giordano (1982) 31 SASR…
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- C, TL v Police [2010] SASC 115
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- [2010] SASC 115
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CaseChat Overview and Summary
In the case of C, TL v Police, the appellant, who had pleaded guilty to one count of rape, appealed against the sentence of 15 months immediate detention imposed by the Youth Court. The appellant's grounds for appeal were that the sentence was manifestly excessive, that the sentencing Judge erred in not suspending the sentence, that the Judge failed to apply the relevant principles for sentencing young offenders, and that the Judge did not provide adequate reasons for the sentence. Additionally, the appellant sought to adduce fresh evidence relating to events that occurred after sentencing.
The primary legal issues for the court to decide were whether the sentence imposed was manifestly excessive, whether the sentencing Judge had properly considered the factors relevant to sentencing young offenders and the objects of the Young Offenders Act 1993, and whether the Judge erred in not suspending the sentence. The court also had to determine whether it should admit fresh evidence presented at the appeal hearing and, if so, the principles guiding the reception of such evidence.
The court found that the sentence was not manifestly excessive, as it had been imposed after considering all relevant factors, including the appellant's age, lack of prior offending history, and potential for rehabilitation. The court noted that the appellant's alcohol consumption had impaired his judgment but did not excuse the gravity of the offence. The court concluded that the sentencing Judge had properly considered the principles relevant to sentencing young offenders and the objects of the Young Offenders Act. The court also found no error in the Judge's decision not to suspend the sentence, as the seriousness of the offence warranted immediate detention. Regarding the fresh evidence, the court held that it should not have admitted it because it did not meet the criteria for altering the outcome of the original sentencing decision.
The court dismissed the appeal, affirming the original sentence of 15 months immediate detention. The reasoning of the Youth Court was upheld, and the fresh evidence was deemed inadmissible.
The primary legal issues for the court to decide were whether the sentence imposed was manifestly excessive, whether the sentencing Judge had properly considered the factors relevant to sentencing young offenders and the objects of the Young Offenders Act 1993, and whether the Judge erred in not suspending the sentence. The court also had to determine whether it should admit fresh evidence presented at the appeal hearing and, if so, the principles guiding the reception of such evidence.
The court found that the sentence was not manifestly excessive, as it had been imposed after considering all relevant factors, including the appellant's age, lack of prior offending history, and potential for rehabilitation. The court noted that the appellant's alcohol consumption had impaired his judgment but did not excuse the gravity of the offence. The court concluded that the sentencing Judge had properly considered the principles relevant to sentencing young offenders and the objects of the Young Offenders Act. The court also found no error in the Judge's decision not to suspend the sentence, as the seriousness of the offence warranted immediate detention. Regarding the fresh evidence, the court held that it should not have admitted it because it did not meet the criteria for altering the outcome of the original sentencing decision.
The court dismissed the appeal, affirming the original sentence of 15 months immediate detention. The reasoning of the Youth Court was upheld, and the fresh evidence was deemed inadmissible.
Orders
Orders of the court
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Background
Background to the litigation
There was also a further application at the hearing of the appeal to adduce fresh evidence as to events that occurred after sentencing on 23 September 2009. Background The offence was committed on 23 November 2008. The appellant was aged 17 years and seven months. The victim was 15 years old. Both the appellant and the victim resided in a country town and knew one another. On the evening of the offence both the appellant and the victim had been at a party with other friends in the country town where they lived. The appellant had been drinking heavily and was observed by others to be affected by alcohol. The appellant initially made a sexual advance on the victim while they were watching a movie together. The victim refused the appellant’s advances. Later, after she fell asleep in the same room she awoke to find the appellant touching her breasts. The appellant then touched her vagina. The victim again resisted his advances and went to another bedroom. After the appellant followed her into the second bedroom, the victim left that room and went to sleep in a third bedroom. She fell asleep and awoke to find that her skirt had been pulled down and her top was being removed. The appellant then proceeded to forcibly rape the victim, throughout which the victim was crying and resisting through both her words and actions. The victim sustained bruising as a result of the rape. The victim impact statements before the sentencing Judge revealed that the consequences of the rape had been devastating for the victim. At the date of sentencing, the victim had had to move away from the country town. The appellant first appeared in the Youth Court on 21 January 2009. On 19 May 2009 the case was listed for trial to commence on 22 July 2009. Approximately one week before the trial the Court was advised that a guilty plea was to be entered and that plea was entered on the date for trial 22 July 2009. The appellant’s personal circumstances At the date of sentencing, the appellant was 18 years and five months. There was no history of violence or sexual offending. The appellant had entered into two previous undertakings in the Youth Court in relation to offences involving a motor vehicle, however, he had never previously been subject to a period of detention. A social background report before the sentencing Judge showed that the appellant had strong family support, together with the support of his then girlfriend who had encouraged him to reduce his alcohol consumption. It was plain from that report that the appellant developed a drinking problem around the age of 15 years in respect of which he had at one stage sought counselling from a youth worker. The appellant told the author of the social background report that he believed that the sexual intercourse with the victim was consensual, and that he may have misinterpreted her signals. There were some positive aspects in the social background report, in particular that the appellant appeared to have had some insight into the impact of alcohol upon his decision making and into the impact of the offending upon the victim and the wider community in which both the appellant and victim lived. The appellant had been employed as an electrical apprentice since January 2009 and subject to him receiving a non‑custodial sentence would have been able to continue with his apprenticeship. A letter from the appellant’s employer to that effect was placed before the sentencing Judge. The Judge’s approach to sentencing
Evidence
Evidence Before The Court
In CDJ v VAJ[11] the High Court expressed a similar view when considering the nature of an appeal by way of rehearing. The Court acknowledged that a provision conferring jurisdiction of this nature on a court should be construed liberally, and noted that the statutory power to receive fresh evidence exists to serve the interests of justice. McHugh, Gummow and Callinan JJ went on to say in their joint judgment:[12]Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original. In Attorney-General v Sillem, Lord Westbury LC pointed out that "[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below". Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a "trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence". Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.[Emphasis added][11] CDJ v VAJ(No 1) (1998) 197 CLR 172.[12] CDJ v VAJ(No 1) (1998) 197 CLR 172 at [111]. The observations of the High Court have been applied by this Court in Police v Dorrizzi (2002) 84 SASR 416 at [28] (Duggan, Debelle & Williams JJ). The evidence sought to be adduced in this Court was exhibited to an affidavit from the defendant’s solicitor and included a detailed psychiatric report prepared by Dr Raeside, and a letter from the defendant’s employer confirming his exceptional performance as an apprentice electrician and indicating that further detention would result in the cancellation of his contract of training. This evidence referred to events and circumstances occurring since sentencing that were said by the defendant to show the true significance of matters existing at the time of sentence. In particular, the evidence was said to disclose matters relevant to the defendant’s mental state.
Decision
Reasons for decision
As earlier discussed, the report of Dr Raeside provides a particular insight into the defendant’s mental state and his susceptibility to mental illness. These are matters that will no doubt be drawn to the attention of the relevant authorities. It is important that the defendant receives the treatment recommended by Dr Raeside and that if possible he be able to continue with an apprenticeship at an appropriate time. There are ample powers under the Young Offenders Act to enable these matters to be addressed. Conclusion I would dismiss the appeal.WHITE J: I would dismiss the appeal. I agree with the reasons of Kelly J. KELLY J:Introduction This is an appeal against a sentence imposed in the Youth Court on 23 September 2009. The appellant pleaded guilty to one count of rape and was sentenced to 15 months immediate detention. There are four grounds of appeal: first, that the sentence of 15 months detention is manifestly excessive; second, that the sentencing Judge erred in failing to suspend the sentence whether in whole or in part; third, that the sentencing Judge failed to apply the principles relevant to the sentencing of a young offender; and fourth, that the sentencing Judge failed to give adequate reasons. At one stage during the appeal hearing the appellant raised the failure of the Judge to fix a non‑parole period. However, that matter was not persisted with in light of s 31A of the Criminal Law (Sentencing) Act 1988 and the decision of Perry J in R v Smith (1994) 74 A Crim R 309. There was also a further application at the hearing of the appeal to adduce fresh evidence as to events that occurred after sentencing on 23 September 2009. Background The offence was committed on 23 November 2008. The appellant was aged 17 years and seven months. The victim was 15 years old. Both the appellant and the victim resided in a country town and knew one another. On the evening of the offence both the appellant and the victim had been at a party with other friends in the country town where they lived. The appellant had been drinking heavily and was observed by others to be affected by alcohol. The appellant initially made a sexual advance on the victim while they were watching a movie together. The victim refused the appellant’s advances. Later, after she fell asleep in the same room she awoke to find the appellant touching her breasts. The appellant then touched her vagina. The victim again resisted his advances and went to another bedroom. After the appellant followed her into the second bedroom, the victim left that room and went to sleep in a third bedroom. She fell asleep and awoke to find that her skirt had been pulled down and her top was being removed. The appellant then proceeded to forcibly rape the victim, throughout which the victim was crying and resisting through both her words and actions. The victim sustained bruising as a result of the rape. The victim impact statements before the sentencing Judge revealed that the consequences of the rape had been devastating for the victim. At the date of sentencing, the victim had had to move away from the country town.
Ratio Decidendi
Legal Principle Established
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