Deng v Scrivens and Kube
[2011] ACTSC 185
•November 2, 2011
KOT ADOR DENG v MARK SCRIVENS and SHARON KUBE
[2011] ACTSC 185 (2 November 2011)
Crimes Act 1900 (ACT), ss 26, 211
Criminal Code Act 1995 (Cth), s 149.1
Magistrates Court Act 1930 (ACT), s 214
House v The Queen (1936) 55 CLR 499
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 83 of 2011
Judge: Burns J
Supreme Court of the ACT
Date: 2 November 2011
IN THE SUPREME COURT OF THE )
) No. SCA 83 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:KOT ADOR DENG
Appellant
AND: MARK SCRIVENS
First Respondent
SHARON KUBE
Second Respondent
ORDER
Judge: Burns J
Date: 2 November 2011
Place: Canberra
THE COURT ORDERS THAT:
The appeal will be dismissed.
The conviction and sentence imposed by the learned Magistrate in each case is confirmed.
Each sentence is to commence as ordered by the learned Magistrate.
Application to adduce further evidence
A preliminary issue has arisen in the hearing of this appeal. The appellant seeks to put fresh evidence before this Court on the hearing of the appeal. It is common ground between the appellant and respondent that the reception of fresh evidence in this Court on an appeal is governed by s 214 of the Magistrates Court Act 1930 (ACT) (the Act). In particular, subsections (3) and (4) of s 214 are relevant. Each provides a different circumstance in which this Court is obliged to accept and take into account fresh evidence on an appeal.
Subsection (3) of s 214 of the Act provides that this Court must receive the evidence of any witness on an appeal if it considers it necessary or expedient to do so in the interests of justice, and if certain other conditions are satisfied. I will not set out at length the other conditions because the matter has been argued before me on the basis that the reception of the material which the appellant now seeks to put before the Court depends upon whether the Court is satisfied that it is necessary or expedient to receive the material in the interests of justice. I will return to subsection (3) in one moment.
Subsection (4) of s 214 of the Act provides that this Court must, unless satisfied that the evidence would not afford any grounds for allowing the appeal, receive fresh evidence on an appeal if, firstly, it appears to this Court that the evidence is likely to be credible and would have been admissible in the proceedings out of which the appeal arose on an issue relevant to the appeal and, secondly, this Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
Assuming that the first of the criteria relevant to the reception of fresh evidence pursuant to subsection (4) of s 214 of the Act is satisfied in the present case, and assuming that the material which is now before me is evidence which was not adduced in the sentence proceedings before the learned Magistrate, the question is whether there is a reasonable explanation for the failure of the appellant to adduce that material before the learned Magistrate.
Initially, it was the position of the appellant that when he came to be sentenced by the learned Magistrate on 24 August 2011, he instructed his solicitor, Mr Kamarul, to apply for an adjournment of the sentence proceedings to enable him to put before the learned Magistrate material in the nature of that which is now sought to be adduced. Subsequently, the appellant has resiled from that proposition. There is no evidence before me upon which I can be satisfied that there is any reasonable explanation for the failure of the appellant to adduce the proposed material before the learned Magistrate. It appears to me likely that, in the light of the sentences imposed by the learned Magistrate on 24 August 2011, the appellant assumed that it was likely that any sentence imposed by the learned Magistrate with respect to the offences now the subject of appeal would be backdated and he would be released from custody.
That is a forensic decision made by the appellant and is certainly not, in my view, a reasonable explanation for the failure of the appellant to adduce that material before the learned Magistrate. However, in one respect, that is hypothetical because the appellant did not give evidence of that as being his motive for not seeking to have that material put before the learned Magistrate. At the present time, as I have already indicated, there is simply no credible evidence of a reasonable explanation for the failure of the appellant to adduce the material now sought to be adduced before the learned Magistrate on sentencing. As such, in my opinion, the circumstances set out under subsection (4) of s 214 of the Act do not arise in this case and the material is not to be adduced to this Court under that provision.
I now return to the provisions of subsection (3) of s 214 of the Act. In order to determine whether it is necessary or expedient to receive the material in the interests of justice, I have examined the material and have reached the conclusion that it is neither necessary nor expedient to receive the material in the interests of justice.
The first document which the appellant seeks to rely upon is a letter from Companion House. That is a letter dated 14 September 2011 and signed by Fiona DeLacey. The second paragraph of that letter sets out something of the history of the appellant. In that regard, much of that material was in the pre‑sentence report that was before the learned Magistrate. It does not appear to me that anything that is set out in the history contained in the letter from Companion House would have been likely to have changed the result before the learned Magistrate. The third paragraph in that letter is headed “Mental Health”. Certain opinions are expressed by Ms DeLacey in the course of that paragraph, including whether symptoms described by the appellant to Ms DeLacey are consistent with particular mental disorders. There is nothing on the face of the document, and certainly there is no other evidence which is before this Court, to establish the qualifications of Ms DeLacey to express the opinions that are set out in that portion of the document. In terms of the balance of the document, in my opinion, that material is not sufficiently cogent to warrant being admitted in the course of the present appeal. It seems to me unlikely that it would affect the outcome of the appeal.
The second document which the appellant seeks to rely upon is a letter from the Canberra Men’s Centre which is undated but which I anticipate was recently made. Effectively, the author of that letter, Roger Munson, a case manager at the Canberra Men’s Centre, expresses the statements that the appellant, prior to being incarcerated, had been engaging with the Canberra Men’s Centre, that they had arranged employment for him and that he also has public housing which may not be available to him after he serves his present period of custody. I note that some of that material was already before the learned Magistrate. Insofar as there is material which is set out in that letter which was not before the learned Magistrate, in my view it is not so cogent as to be likely to affect the outcome of the appeal.
The third document which the appellant seeks to rely upon is a report from Dr Ann Harrison dated 8 September 2011. Dr Harrison is a psychiatrist who works at the Winnunga Nimmityjah Aboriginal Health Service. The report sets out in conventional fashion a history taken from the appellant and a clinical summary. It is intriguing, but perhaps not particularly relevant in terms of the question of the admissibility of that document, in that it seems to conflict with statements made by the appellant to the author of the pre‑sentence report which was before the sentencing Magistrate. In that regard, I note that there was no application made by the appellant’s solicitor for the author of the pre‑sentence report to be made available for cross-examination, so that that portion of the pre‑sentence report could be the subject of dispute. Nor do I understand it that the appellant’s solicitor at that time took issue before the sentencing Magistrate with the contents of the pre‑sentence report. However, as I said, that is in all likelihood not directly relevant to the question of the current admissibility of the report of Dr Harrison. Some of the material which is contained within Dr Harrison’s report, particularly in relation to the background of the appellant, was already before the learned Magistrate. In that regard, I note that some of that material was provided in the pre‑sentence report and some was provided by way of submissions by the appellant’s solicitor.
Dr Harrison expresses an ultimate opinion that the appellant has presented with symptoms of post-traumatic stress disorder. However there is nothing in the report which is now sought to be put before this Court to in any way link any condition of post-traumatic stress disorder said to be suffered by the appellant with his offending behaviour with respect to the offences before the learned Magistrate. In that regard, it would appear to me that significant weight could not have been given to the contents of that report in arriving at an appropriate sentence with respect to the appellant. For that reason I do not consider that the contents of that report would be likely to affect the outcome of either the proceedings before me, or would have been likely to affect the outcome of the proceedings before the sentencing Magistrate.
The fourth document is a document from Directions ACT. It is dated 30 September 2011. The author of that letter, Kaylene Mallott, who is a co-ordinator of the Inside Out Throughcare Program conducted by Directions ACT, notes that the appellant has accessed the support of Directions ACT and he has been assessed for the Inside Out Throughcare Program and he meets the eligibility criteria for admission to that program.
Ms Mallott states that the appellant has told her that he will follow up with case management and counselling if released from prison. Directions ACT have developed a support plan that the appellant has agreed upon, and the appellant is hoping to be able to put that plan into place when released. Ms Mallott said that the appellant appeared to be more motivated this time around, telling her that he wanted to make changes to his life. They discussed alcohol misuse, and the appellant told Ms Mallott that he realised that he cannot consume alcohol as he falls back into the same behaviours and has limited control of his actions when he is under the influence of alcohol. In my opinion, the contents of that material, to the extent that they were not before the sentencing Magistrate, are not so cogent as to be likely to affect the outcome of the appeal in this case.
The final document which I must refer to is a letter from ACT Corrective Services which appears to be undated, but advises that the appellant was assessed for suitability for admission to the Managed Accommodation Program on 23 September 2011. That letter advises that the appellant has been found suitable, but that entry into the program will be subject to room availability. Again, in my opinion, that material is not so cogent as to be likely to affect the outcome of the appeal.
For those reasons, I have formed the view that it is neither necessary nor expedient to receive this material in the interests of justice.
Appeal
By a Notice of Appeal filed 20 September 2011, the appellant appeals from sentences imposed by Magistrate Walker, as the Chief Magistrate then was, on 24 August 2011. At the time that the appellant lodged the Notice of Appeal, he was not legally represented. Subsequently, he has been legally represented and, at the outset of this appeal Mr Hassall, who appears on behalf of the appellant, was granted leave to file in court amended grounds of appeal.
The grounds which are relied upon by the appellant with respect to this appeal are, firstly, that the learned Magistrate failed to give adequate weight to the mitigating circumstances in which the offences took place. Secondly, that the learned Magistrate failed to give adequate weight to the cultural background, antecedents and mental condition of the appellant. Thirdly, that the learned Magistrate failed to give adequate weight to the probable effect that the sentence imposed would have on the appellant’s family. Fourthly, that the learned Magistrate failed to give adequate weight to the appellant’s pleas of guilty to the offences and the timing of the pleas. Fifthly, the learned Magistrate failed to give any or adequate weight to the community interest in the rehabilitation of the appellant. And finally, the sentence imposed by the learned Magistrate was manifestly excessive.
The learned Magistrate had before her on 24 August 2011 five charges. The first was a charge of obstructing or hindering police, pursuant to the provisions of s 149.1 of the Criminal Code Act 1995 (Cth). That carries a maximum term of imprisonment of two years. The sentence imposed by her Honour on conviction was two months imprisonment. The second charge was a charge of common assault, contrary to the provisions of s 26 of the Crimes Act 1900 (ACT). The maximum penalty with respect to that offence is two years imprisonment. Her Honour imposed a conviction and two months imprisonment, which was concurrent with the sentence imposed on the charge of obstructing or hindering police. The third charge was another charge of common assault, contrary to s 26 of the Crimes Act 1900 (ACT). On that matter, her Honour also imposed a conviction and two months imprisonment, which was cumulative on the sentence imposed with respect to the earlier charge of common assault. The fourth charge before her Honour was a charge of providing a false name or address, contrary to section 211 of the Crimes Act 1900 (ACT). The maximum penalty with respect to that offence is a $500 fine. Her Honour imposed a fine of $100 and provided 12 months to pay. The final charge was a further charge of common assault, contrary to the provisions of section 26 of the Crimes Act 1900 (ACT). Her Honour imposed a sentence of three months imprisonment, which was to be served concurrently with other sentences.
Effectively, the sentences imposed by her Honour involved terms of imprisonment commencing on 21 August 2011 and expiring on 20 January 2012. I do not propose to refer in any detail to the statement of facts that was put before the learned Magistrate. They have not been the subject of challenge either before the learned magistrate or before myself.
In sentencing the appellant with respect to the offences then before her, the learned Magistrate was exercising a discretionary function. This Court, in accordance with the provisions set out in House v The Queen (1936) 55 CLR 499 and subsequent cases, is not entitled to interfere with the sentencing discretion of the learned Magistrate unless this Court is satisfied that either a mistake of fact or law was made by the learned Magistrate in the course of the sentencing proceedings or, alternatively, that the sentence that was imposed by the learned Magistrate is manifestly excessive.
I have given very close consideration to the sentencing comments made by her Honour. I am not persuaded that she has made any of the errors suggested by counsel for the appellant. I have also given consideration as to whether the sentences, both individually and in terms of the way in which they have been structured to arrive at an ultimate sentence, are manifestly excessive. It was submitted that her Honour may have lost sight of the desirability of rehabilitation with respect to this appellant. I do not accept that submission, nor do I accept the submission that the sentences imposed by her Honour, either individually or, insofar as they were accumulated, result in a manifestly excessive sentence.
It was open to her Honour and, indeed, it seems to me to be almost unchallengeable to find that the stage had been reached where attempts to rehabilitate this appellant had been tried and had not worked. It is clear from his criminal history that he has been given numerous opportunities to rehabilitate himself. He has not taken advantage of those opportunities – he continues to offend. It was open to her Honour to determine that the time has arrived when the appellant should feel the full force of the penalties for his offending behaviour in an effort to ensure that he understands that if he does not address those factors, and particularly the consumption of alcohol, likely to lead him to offending, then he will suffer very significant penalties in the future. If I can be so blunt as to put it this way, the appellant must understand that if he does not address his drinking, he will continue to offend. If he continues to offend, he will go to prison, and that is the approach taken by the learned Magistrate and, in my view, it was an appropriate approach.
I do not consider her Honour has neglected the issue of rehabilitation. A deterrent sentence in itself may provide a spur to rehabilitation. If this had been the first occasion in which this appellant had appeared before a court charged with offences of violence, one may well have said that the court would be justified in taking an approach concentrating upon his rehabilitation. But, as I have already noted, this is not the first occasion, and previous attempts at rehabilitation have not been successful.
The appeal will be dismissed. The conviction and sentence imposed by the learned Magistrate in each case is confirmed, and each sentence is to commence as ordered by the learned Magistrate.
I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 14 November 2011
Counsel for the appellant: Mr M Hassall
Solicitor for the appellant: Legal Aid ACT
Counsel for the respondent: Ms M Moss
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 2 November 2011
Date of judgment: 2 November 2011
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