Director of Public Prosecutions (SA) v C, Mg - [2016] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v C, MG
[2016] SASC 104
Judgment of The Honourable Justice Bampton
8 July 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
The Director of Public Prosecutions seeks an extension of time within which to appeal a sentence on the grounds that the sentence is manifestly inadequate and the magistrate erred in suspending the sentence – respondent sentenced to 12 months imprisonment with a non-parole period of seven months upon pleading guilty to 12 counts of aggravated indecent assault – sentence suspended upon the respondent entering into a two year good behaviour bond – notice of appeal filed 19 days out of time – consideration of the question of time separately from the merits – consideration of the merits of the proposed appeal in event a 19 day delay is not on “the wrong side of the line” – whether proper purposes of a prosecution appeal are served by granting an extension of time.
1. A delay of 19 days by the Director in filing the proposed appeal against sentence is too long a delay.
2. If a 19 day delay is not on “the wrong side of the line”, on a consideration of the merits of the appeal the proper purposes of a prosecution appeal would not be served by granting an extension of time.
3. Extension of time refused.
4. Notice of Appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 18A, s 19(3); Magistrates Court Act 1991 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) s 353(2); Supreme Court Civil Rules 2006 (SA) r 281, r 295, referred to.
Director of Public Prosecutions v Pepicelli (1993) 60 SASR 520; Attorney-General v Tichy (1982) 30 SASR 84; Everett v The Queen (1994) 181 CLR 295; R v Tait and Bartley (1979) 46 FLR 386, considered.

DIRECTOR OF PUBLIC PROSECUTIONS (SA) v C, MG
[2016] SASC 104
Magistrates Appeal: Criminal

BAMPTON J: The Director of Public Prosecutions (“the Director”) seeks an extension of time within which to appeal a sentence imposed by the Magistrates Court on grounds the sentence is manifestly inadequate and the Magistrate erred in suspending the sentence.
The respondent pleaded guilty to 12 counts of aggravated indecent assault and on 10 March 2016 was sentenced to 12 months’ imprisonment. A non-parole period of seven months was fixed and the sentence suspended upon the respondent agreeing to enter into a two year good behaviour bond.
Time to appeal as of right expired on 31 March 2016, 21 calendar days after the imposition of the sentence. The Director filed the Notice of Appeal seeking an extension of time within which to appeal on 19 April 2016.
For the reasons that follow, I decline to exercise the discretion prescribed by r 295 of the Supreme Court Civil Rules 2006 (SA) (“the Rules”) to extend the time within which to appeal.
Background
By Information dated 2 September 2015, the respondent was charged with 12 counts of aggravated indecent assault. The circumstance of aggravation in respect of each count is that the victim is the respondent’s former wife.
The offending
The respondent and the victim’s marriage broke down in 2000. They had been separated for approximately 13 years at the time of the offending.
They maintained an amicable relationship and keep in contact in relation to their two adult children. On occasion the respondent would sleep at the victim’s house when he assisted the victim around the house. They last had consensual sexual intercourse in 2001 or 2002.
As the victim is a hoarder, her usual practice was to sleep on a couch in the lounge room because she could not access her bedroom. When the respondent stayed over he would sleep on another couch in the lounge room. The victim was a user of cannabis and would have “a couple of cones” in the evening.
One morning, the victim woke to find a dried white substance she suspected was semen on her face. The victim thereafter decided to place a video camera in her lounge room in order to capture on video what may have been taking place while she was asleep.[1]
[1] Summary of prosecution facts.
The respondent slept over between 19 and 25 September 2013. After the respondent left, the victim reviewed the video footage captured overnight on 20 to 24 September 2013. She found that the respondent indecently assaulted her on each of the five nights while she slept.
There were 49 separate acts of indecent assault involved in the offending. Those acts primarily involved the respondent touching the victim’s face with his exposed penis but also involved him touching her on the breasts and between her legs.
The 12 charged acts of indecent assault are representative of the 49 separate identifiable acts apparent in the footage taken over the five night period.
In about mid-October 2013, the victim rang the respondent and told him about what had been captured on the video. During the phone call the respondent asked the victim not to go to the police.
It was submitted by counsel for the respondent and accepted by the Magistrate that, upon being confronted by the victim and told of his offending, the respondent attended at the Sturt police station to hand himself in. As the matter had not been reported he was sent away.
The respondent wrote three letters to the victim apologising and asking for forgiveness.
The victim reported the matter to police on 21 December 2014. The respondent was interviewed by police on 5 March 2015 and said he would “admit whatever you want me to admit”. The respondent was thereafter arrested and charged with the offending.
The guilty pleas and sentencing submissions
On 14 October 2015, the respondent pleaded guilty to the 12 charges of indecent assault. By virtue of his early pleas, he was entitled to up to 40 per cent discount pursuant to s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”).
Following the entering of the pleas, the matter returned to court on three occasions for sentencing submissions. On 7 December 2015, the victim impact statement was read by the victim to the Court and the Magistrate was provided with a summary of the facts and a table of charged and uncharged acts.
By reference to the Court record, the submissions were adjourned to 17 December 2015 for mention “for ongoing negotiations as to the contents of reports. Matter listed for mention at which time a date for further lengthy submissions in the New Year to be fixed”. In his remarks on penalty, the Magistrate states that on 17 December “some consensus had been reached and I received the medical reports in question”. The reports were the psychiatric opinion of Dr Vance Tottman, dated 26 November 2015, and the forensic psychological opinion of Mr Allen Fugler, dated 12 November 2015. The matter was adjourned to 26 February 2016 at which time the Magistrate “had the benefit of hearing detailed submissions”.
The Magistrate’s sentence and remarks on penalty
In commencing his remarks, the Magistrate explained:
The purpose of these sentencing remarks is obviously to clearly set out to everybody who is an interested party in this matter, as well as to the wider community, the basis for my sentencing approach and the factors that I have taken into account.
The Magistrate referred to having had the benefit of hearing the victim personally read her victim impact statement. His Honour noted the devastating and significant impact the offending had had upon the victim. He also made it clear that he had put the statement into the context of the overall circumstances of the matter and its reference to the previous relationship between the victim and the respondent. The Magistrate observed that it was a powerful document which he said was “hardly surprising – given the breach of trust and the nature of the offending in this matter”.
The Magistrate noted Dr Tottman’s comments regarding the potential impact the respondent’s antidepressant medication, Fluoxetine (Prozac), may have had on his offending. Dr Tottman said that in his opinion the respondent’s behaviour was consistent with other patients in his practice and the patients of other psychiatrists who complain of irritability and disturbed sexuality whilst on Fluoxetine. Dr Tottman said it was clear the respondent should avoid Fluoxetine at all times and be prescribed antidepressants that are not associated with disturbed sexuality. Dr Tottman was of the view that if the respondent avoided Fluoxetine the likelihood of him reoffending was most unlikely.
Mr Fugler said he did not recommend the respondent undergo treatment for a sexual disorder but that he may benefit from supportive counselling from a psychologist. Mr Fugler expressed the view that he did not expect the respondent to reoffend given his embarrassment, contrition and the fact that contact with his ex‑wife in circumstances in which sexual activity would occur was unlikely.
The Magistrate observed that whilst the potential impact of Fluoxetine did not in any way mitigate the respondent’s offending, it may go some way towards explaining what was otherwise totally inexplicable behaviour.
He also noted the opinions of Dr Tottman and Mr Fugler to the effect that the respondent was unlikely to offend again.
During the hearing of this application, I asked counsel for the Director whether the Director took issue with the opinion that the respondent was unlikely to reoffend. Counsel said that as the facts of the offending were bizarre, directed towards the victim and there was no antecedent history it was open to find that the risk of reoffending might have been low.
The Magistrate said that he took note of the respondent’s reaction when he was confronted by the victim and told about the video of his offending. He accepted that the respondent felt remorse and took himself immediately, in the early hours of the morning, to the Sturt police station with a view to handing himself in.
It was not until a year later, on 21 December 2014, that the victim attended the Sturt police station and reported the matter. The victim, by reference to the summary of facts, waited to report the matter because of the seriousness of it and out of concern for her family.
The Magistrate also noted that the letters of apology written by the respondent were a genuine expression of remorse and an acknowledgment of his appalling treatment of the victim, his abuse of her trust, and his disrespect for her.
The respondent was 58 years of age at the time of sentencing with no criminal antecedents. He had suffered significant family tragedies. The Magistrate accepted that he had dedicated himself to his work as a psychiatric nurse, and that employment had consequences on both his physical and mental health. For example, he had contracted Hepatitis C through a needle stick injury which had had an impact on his marriage.
The Magistrate stated that there was no doubt that the offending was appalling behaviour and quite bizarre in some respects. He observed that a complex background of the respondent’s feelings towards his ex‑wife together with the effect of his medication somehow gave rise to the appalling and otherwise inexplicable behaviour.
The Magistrate noted that the respondent had otherwise led a blameless life, had devoted himself to his vocation and was of good character. He noted that the respondent had been referred to a psychologist and was continuing to address his various mental health issues as well as his ongoing medical issues. Counsel for the respondent informed me that the respondent continues to see a psychologist on a monthly basis.
The Magistrate acknowledged that counsel had addressed him on the issues of personal and general deterrence. He observed that the need for personal deterrence was perhaps lessened because of the respondent’s apology, his guilty pleas, his frankness with his psychiatrist and psychologist, and the fact that he was not a threat to the community.
The Magistrate noted that general deterrence was a factor that he must take into account. He noted that the prosecutor had submitted that the offending was not a single incursion and that, given the nature of the breach of trust, the offending was towards the upper end of the scale for indecent assaults. He also noted the prosecutor’s submission that the objective gravity of the offending was such that immediate imprisonment was the only appropriate penalty.
The Magistrate said that, following the submissions on 26 February 2016, he had resolved to take some time in considering an appropriate sentencing approach. He referred to having read, and reread, the medical reports, the character references the letters of apology, the statement of agreed facts, the table of charged and uncharged acts, and the victim impact statement. He also reminded himself of the maximum penalties and the appropriate authorities. He said that the offending was serious, to say the very least, and he accepted the prosecutor’s submission that, given the overall circumstances, the appalling breach of trust, and the disrespectful treatment of the respondent’s ex-wife, a reasonably lengthy period of imprisonment was the only appropriate penalty.
The Magistrate sentenced the respondent utilising s 18A of the CLSA. He commenced with a sentence 20 months’ imprisonment and deducted 40 per cent on account of the early guilty pleas, leaving a head sentence of 12 months’ imprisonment. A non‑parole of seven months was fixed. The Magistrate then proceeded to consider the issue of suspension:
I am prepared to be perfectly frank and concede that this issue I consider to be finely balanced and has caused me to reflect on [this] matter on a number of occasions.
The Magistrate said that the issue of suspension required him to revisit the entire circumstances of the matter, not just the offending but also the respondent’s personal circumstances. He repeated that there was much weight in the prosecution submission that objectively the offending was grave. It was an appalling breach of trust and he was mindful of the significant impact on the victim. He said he was mindful of the respondent’s age, his lack of any previous offending, his previous good character, his expressions of remorse including the guilty pleas, the contents of the psychiatric and psychological reports, the respondent’s frankness with the authors of those reports, and the opinion expressed therein that he was unlikely to offend again.
The Magistrate said that, whilst it was finely balanced, he resolved that there was good reason upon which to suspend the sentence. He ordered that the sentence be suspended upon the respondent entering into a bond to be of good behaviour for two years.
Finally, the Magistrate did not impose any further conditions on the bond noting the steps the respondent had taken since the offending and that he had a sufficient support network in place.
The Director’s application for an extension of time
The Director in acknowledging that the 19 day delay in filing the Notice of Appeal is not insignificant contended there is merit to the proposed appeal.
In support of the application for an extension of time, the Director relied on an affidavit sworn 18 April 2016 of the solicitor employed in his office who had the conduct of this matter. The solicitor deposes that following the imposition of the sentence on 10 March 2016, she contacted the Magistrate’s clerk by email on 16 March 2016 requesting a copy of the sentencing remarks. The solicitor says that she was of the understanding that the production of settled sentencing remarks was required in order to file a Notice of Appeal. The solicitor was advised by the Magistrate’s clerk that the sentencing remarks would be forwarded as soon as possible.
On 4 April 2016, she again emailed the Magistrate’s clerk requesting the remarks. On that day, she provided a memorandum of advice to her direct manager in relation to the arguable merit of a Crown appeal against the sentence and advised of the delay in obtaining the sentencing remarks. On 8 April 2016, a copy of the sentencing remarks was emailed to the solicitor by the Magistrate’s clerk.
On 11 April 2016 the solicitor provided a copy of the sentencing remarks to her direct manager. Following discussion of the merits of an appeal with her direct manager and a managing prosecutor, the solicitor understood the matter was brought to the attention of the Director late on Wednesday 13 April 2016. The solicitor explains that the Director was interstate on 14 and 15 April 2016 and she was not able to obtain his instructions until Monday 18 April 2016.
Finally, the solicitor deposes that an attempt was made to file the Notice of Appeal on the day she received instructions from the Director, but amendments were required by the Registry. The notice was ultimately filed on 19 April 2016, some 19 days out of time.
Section 42 of the Magistrates Court Act 1991 (SA) (“the Magistrates Court Act”) provides that a party to a criminal action is entitled as of right to appeal the sentence in accordance with the rules of the appellate court.
The rules of the appellate court are found in Chapter 13 of the Rules. Pursuant to r 281, the appeal must be instituted within 21 days after the date of the sentence. Accordingly, the Director should have filed the appeal on or before 31 March 2016.
Rule 295(1)(a) empowers the Court, in the exercise of its discretion, to extend the time for the commencement of the appeal.
Counsel for the Director conceded the late filing of the notice “stemmed primarily from” the solicitor “being under some misapprehension as to the need to obtain the sentencing remarks before the matter was brought to the attention of the Director”.
There is no dispute that the time for appeal ran from the day after the Magistrate imposed the sentence and orally delivered his sentencing remarks.
The grounds of appeal are that the sentence is manifestly inadequate and, secondly, that the Magistrate erred in the exercise of his discretion in suspending the sentence. The Magistrate read his sentencing remarks at the time he imposed the sentence. There was nothing ambiguous about the sentence imposed or its suspension. There was nothing complicated about the formulation of the grounds of appeal. The Director, as the head of a government agency, was not required to pay the Supreme Court filing fee for the filing of a Magistrates Court criminal appeal. There was nothing preventing the Director’s office from filing a Notice of Appeal and giving notice of an intention to amend the grounds once the remarks became available. In the event the Director did not give instructions to appeal, the appeal could have been discontinued.
The solicitor with the conduct of the matter candidly admits that she understood settled sentencing remarks were required in order to file a Notice of Appeal, that she took six days to request the remarks, and that she did not provide a memorandum of advice to her direct manager until 4 April 2016.
The solicitor does not explain, having advised of the delay in obtaining the remarks on penalty in the memorandum of advice to her direct manager, whether the topic of the time within which to appeal was discussed with the manager.
The solicitor also refers to discussing the merits of the appeal with her direct manager and a managing prosecutor. I infer that this discussion occurred between the solicitor forwarding the remarks to her direct manager on 11 April 2016 and the matter being brought to the attention of the Director on 13 April 2016. The solicitor does not explain whether the topic of the time to appeal arose during this discussion, noting that by 11 April 2016 the time had expired 11 days earlier on 31 March 2016.

The Director was interstate on 14 and 15 April and instructions to appeal were given on Monday 18 April. Counsel for the Director submitted during the hearing before me that “the delegation to commence appeal proceedings or to file a Notice lies only with the Director”.[2]
[2] T5/20-22.
Whilst the explanation for the delay in filing the Notice of Appeal was essentially due to a misunderstanding it does not, in my view, amount to a satisfactory explanation in the context of an appeal against sentence sought to be brought by the Director.
The application for an extension of time considered separately from the merits of the proposed appeal
In Director of Public Prosecutions v Pepicelli (“Pepicelli”),[3] the then Director made application for leave to appeal 35 days after the respondent was sentenced. At the time of the application, as no time was prescribed within which an appeal under s 353(2) of the Criminal Law Consolidation Act 1935 (SA) must be brought, it had to be brought with all convenient speed.[4] In Pepicelli, the Director “accepted frankly that there was no excuse for so long having elapsed before he made the application and he gave no reason for it”. The Director argued, however, that in considering whether leave should be granted the Court should have regard to the merits of the appeal, whether it was a proper case for an appeal by him and that his lateness was merely a factor to take into account in considering the application. In refusing the application Millhouse J, with whom Mohr J and Bollen J agreed, stated that the question of time within which to take a step in proceedings is to be considered separately from the merits, “In my view the question of time should be considered first and separately from the merits of the appeal”. His Honour stated that:
In the end it comes down to this: is applying for leave to appeal 35 days after sentence doing “the thing … with all convenient speed”? In the circumstances here the answer to the question is, “No” 35 days is too long a delay.
After some time there is a line beyond which it will be said that the delay has been too long. I do not presume to say after what time. All I say is that in this case 35 days is on the further, the wrong side of the line.
Applying the decision in Pepicelli to the circumstances of this matter, without considering the merits of the proposed appeal, it is my view that a 19 day delay in the filing of a Director’s appeal against sentence is too long a delay. Accordingly, I decline to grant an extension of time to appeal.
Consideration of the merits of the proposed appeal in determining whether to grant an extension of time
[3] (1993) 60 SASR 520.
[4] Attorney-General v Tichy (1982) 30 SASR 84.
If I am wrong and a 19 day delay is not on “the wrong side of the line”, then the merits of the proposed appeal must be assessed in conjunction with the length of and reasons for the delay. The question is whether there is merit to the appeal such that a failure to grant an extension of time would lead to a miscarriage of justice as a result of a manifestly inadequate sentence.
As the Director’s proposed appeal is pursuant to s 42 of the Magistrates Court Act, the principles applicable to a prosecution appeal against sentence are those articulated in Everett v The Queen[5] (“the Everett principles”).
[5] (1994) 181 CLR 295.
Accordingly, the Director must establish that this is a rare and exceptional case where the sentencing discretion of the Magistrate should be interfered with. Having regard to the Everett principles, the Director must establish that there has been some error in principle which encompasses a manifest inadequacy in sentencing standards.
It is the principle against double jeopardy that is the foundation of the “rare and exceptional” test. In R v Tait and Bartley,[6] the Full Court of the Federal Court explained:
… A Crown appeal puts in jeopardy “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal (per Isaacs J in Whittaker v R). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court. …
[6] (1979) 46 FLR 386 at 387-388.
In my view, the Everett principles also impliedly dictate that the time limit within which to appeal must be strictly adhered to for the Court to entertain a prosecution appeal. The sentencing took place on 10 March 2016, almost four months ago. The respondent would have been justified in believing, until he was served with the Notice of Appeal, that time to appeal had expired and there was to be no interference with the sentence. He has since 10 March 2016 been subject to the suspended sentence good behaviour bond and has continued with his psychological counselling.
The Director did not file the appeal within the time limit prescribed by the Rules and made this application 19 days after the time within which to appeal as of right had expired.
The maximum penalty for an aggravated offence of indecent assault is 10 years’ imprisonment. Pursuant to s 19(3) of the CLSA, the maximum penalty the Magistrate could impose for one offence was five years’ imprisonment and for more than one offence, 10 years’ imprisonment.
The gravity of the offending was significant involving 12 charged acts representative of 49 indecent assaults committed against the respondent’s former partner whilst she slept. The offending was committed in circumstances where the victim had allowed the respondent to sleep overnight with her in the same room. It was committed against an unconscious and vulnerable victim. Having regard to these matters and the personal circumstances of the respondent as set out in the sentencing remarks, it is my view the Magistrate carefully considered all relevant matters in arriving at the sentence. In the circumstances of this offending, the head sentence and the non-parole period fixed by the Magistrate are merciful. It is undoubtedly a sentence about which fair minds will differ. However, the Director has not demonstrated this is a rare and exceptional case requiring the Court to interfere with the sentence.
Finally, in my view, it cannot be said that it was not open to the Magistrate to suspend the sentence. Having regard to particular circumstances of this offending and the respondent’s personal circumstances, it was within the Magistrate’s discretion to conclude that good reason did exist to suspend the sentence.
Conclusion
In considering the question of time first and separately from the merits, a delay of 19 days by the Director in filing the proposed appeal against sentence is too long a delay.
If a 19 day delay is not on “the wrong side of the line”, having considered the merits of the proposed appeal I am of the view that the proper purposes of a prosecution appeal would not be served by granting an extension of time.
I decline to extend the time within which to appeal and dismiss the Notice of Appeal.