Gzo v The Queen

Case [2021] SASCA 67

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

GZO v THE QUEEN

[2021] SASCA 67

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)

5 July 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES

Application for permission to appeal against sentence.

The applicant pleaded guilty to various offences. He was entitled to percentage reductions varying from 30 to 40 per cent for his guilty pleas. The sentencing judge applied a further 15 per cent reduction for cooperation with police.

The sentencing judge had been provided with a letter from the South Australia Police (SAPOL), commonly known as a ‘Golding letter’, indicating that SAPOL had received information from the applicant, and in consequence had conducted two searches.  As a result of those searches, one person was reported for an offence.

Following sentencing, the police wrote a second Golding letter. This indicated that on the basis of information that the applicant had previously supplied, SAPOL had (on a date after the applicant had been sentenced) conducted a search of a property and arrested an individual who was ultimately charged with a number of offences. This information was the subject of an application to adduce fresh evidence on the appeal.

The applicant’s Notice of Appeal complained that the sentence was manifestly excessive, and complained of the sentencing judge’s approach in arriving at and applying the discount of 15 per cent and in failing to reduce the sentence by an appropriate amount on account of the applicant’s guilty pleas, amongst other grounds.

Held, per Bleby JA (Kelly P and Lovell JA agreeing), admitting the evidence of the second Golding letter, granting permission to appeal, allowing the appeal, setting aside the sentence and resentencing the applicant:

1.  The sentencing judge did not err by applying a discount for cooperation after discounting the head sentence on account of the guilty pleas. The judge explained clearly the manner of application of that discount.

2.  A review of historical approaches to discounts for cooperation does not allow generalised conclusions about discounts that are commonly afforded for cooperation alone. It is necessary to give careful consideration to the nature of the cooperation and the quality of the assistance given.

3.  The second Golding letter identifies that the applicant’s assistance was of considerably greater utility than was, or could have been, appreciated by the sentencing judge. The discount of 15 per cent, applied after the other discounts and thereby resulting in a global discount of approximately 13 per cent for cooperation, is too low.

4.  The applicant is resentenced. A discount of 20 per cent is made on account of the applicant’s cooperation…

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Gzo v The Queen [2021] SASCA 67
Case
[2021] SASCA 67
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against sentence by an applicant who had provided assistance to authorities. The applicant sought to introduce fresh evidence in the form of a second Golding letter, which detailed the utility of his cooperation. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the court were whether the sentencing judge erred in the application of a discount for cooperation after a discount for a guilty plea, and whether the discount applied for cooperation was manifestly inadequate, particularly in light of the fresh evidence. The court also considered the principles governing the admission of fresh evidence on appeal against sentence.

The court, per Bleby JA, held that the sentencing judge did not err in the manner of applying the discount for cooperation. However, the court found that the fresh evidence contained in the second Golding letter demonstrated that the applicant's assistance was of considerably greater utility than appreciated by the sentencing judge. Consequently, the initial 15 per cent discount for cooperation, resulting in a global discount of approximately 13 per cent, was deemed too low. The court applied the principles for admitting fresh evidence, finding that the second Golding letter shed new light on the significance of facts existing at the time of sentence.

The appeal was allowed, the original sentence was set aside, and the applicant was resentenced. A discount of 20 per cent was applied to account for the applicant's cooperation and the contents of the Golding letters.

Orders

Orders of the court

Held, per Bleby JA (Kelly P and Lovell JA agreeing), admitting the evidence of the second Golding letter, granting permission to appeal, allowing the appeal, setting aside the sentence and resentencing the applicant:

1. The sentencing judge did not err by applying a discount for cooperation after discounting the head sentence on account of the guilty pleas. The judge explained clearly the manner of application of that discount.

2. A review of historical approaches to discounts for cooperation does not allow generalised conclusions about discounts that are commonly afforded for cooperation alone. It is necessary to give careful consideration to the nature of the cooperation and the quality of the assistance given.

3. The second Golding letter identifies that the applicant’s assistance was of considerably greater utility than was, or could have been, appreciated by the sentencing judge. The discount of 15 per cent, applied after the other discounts and thereby resulting in a global discount of approximately 13 per cent for cooperation, is too low.

4. The applicant is resentenced. A discount of 20 per cent is made on account of the applicant’s cooperation and the contents of the two Golding letters.

Background

Background to the litigation

There is a difference, however, between evidence that shows the ‘true significance’ of facts which were in existence at the time of sentence, which significance could not reasonably have been before the sentencing judge, and evidence which, while containing new or further information, is not revelatory in that sense. It is not necessarily an easy distinction to maintain.[13] In R v C, Perry J explained that:[14]on an appeal against sentence the court confines itself to evidence of the facts which existed at the time the sentence was passed, or which put such facts in a new light… (Emphasis added)[13] R v C (2004) 89 SASR 270 at [19] (Doyle CJ).[14] R v C (2004) 89 SASR 270 at [113] (Perry J). In the same case, Doyle CJ undertook a comprehensive view of the authorities to that time, including those that concerned consequences of a defendant having provided assistance to the police. Relevant to the present consideration, he observed:[15]On the other hand, there have been cases in which an applicant has been sentenced on the basis that the applicant has already provided assistance to the police or to prosecuting authorities, or had agreed to do so, and in which evidence has been admitted of events occurring after sentence was passed with a view to establishing that the circumstances of the applicant’s imprisonment were more adverse than could have been anticipated when sentence was passed. That is, that the risk of harm to the applicant, attributable to the provision of assistance, had led to the applicant undergoing greater restrictions, or being exposed to greater risks while in prison, that was anticipated when sentence was passed, or could have been anticipated.(Emphasis added)[15] R v C (2004) 89 SASR 270 at [31] (Doyle CJ). See also R v Brain (1999) 74 SASR 92 at [86] (Doyle CJ, Bleby and Wicks JJ agreeing). […] […] The second Golding letter identifies that [the appellant’s] assistance was of considerably greater utility than was, or could have been, appreciated by the sentencing judge.Historical approaches to discounts: the respondent’s material Following the hearing in this matter, the respondent at the Court’s request, and with the appellant’s consent, provided the Court with copies of written submissions that the prosecution had prepared in two previous cases. I will refer to those cases as M v The Queen and R v D. This was to assist the Court in understanding historical approaches to discounts given for such assistance. These written submissions had listed a considerable number of past cases where discounts had been given for cooperation, for the purposes of making submissions in those cases. The judgments in M v The Queen and R v D have been suppressed. The Court invited further submissions from the parties restricted to the use that could or should be made of the cases. The exigencies of individual circumstances of cooperation make issuing any kind of guideline quite impossible (and undesirable). Nevertheless, this recorded history of such discounts, and the circumstances in which they were made, can be of some assistance in determining whether a discount given should be regarded as anomalous, and therefore potentially erroneously low or high.

Evidence

Evidence Before The Court

I accept that to frame a discount for cooperation independently of, and in addition to, any discount given for a guilty plea (and any further reductions) can be conducive to clarity. However, the sentencing judge explained clearly the stage of application of the discount, allowing for its impact on the overall sentence to be understood, albeit that it allowed for a perspective that the discount was not as great as the judge had announced. The manner of application of the discount was not attended by error.Fresh evidence: the value of the applicant’s cooperation I turn to the impact of the fresh evidence. In light of the limited assistance that the applicant’s cooperation was understood to have given at the time of sentencing, the discount does not appear to me to have been inadequate as matters were then presented. Whether it should be regarded as erroneously low in light of the second Golding letter is assisted by some understanding of discounts given in other matters. Nevertheless, it must be kept in mind that an appropriate discount in any given case is highly specific to the circumstances. […] In R v Dorning,[5] the Full Court summarised the circumstances in which fresh evidence would be permitted to be adduced on appeal, given the general permission in what was then s 359(a) of the Criminal Law Consolidation Act 1935 (SA) (now the subject of s 166 of the Criminal Procedure Act 1921 (SA)):[6]In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible, but the Full Court will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth: Orchard v Orchard[7]. See also Reg v Parks,[8] cited in In re van Beelen[9]. It was pointed out in In re van Beelen[10] that applications under s 359 to lead fresh evidence are never lightly granted.(Footnotes in original)[5] (1981) 27 SASR 481.[6] R v Dorning (1981) 27 SASR 481, 485-486 (Walters, Zelling and Williams JJ).[7] (1972) 3 SASR 89.[8] (1961) 46 Cr. App. R. 29.[9] (1974) 9 SASR 163 at p 191.[10] (1974) 9 SASR 163 at p 188. The Court applied this test in R v Smith.[11] That case concerned a defendant who had, prior to sentencing (in 1986), been diagnosed as having antibodies to the AIDS virus. That information was before the sentencing judge. On the hearing of the appeal, counsel sought to tender a medical report that explained further the development and implications of that diagnosis. Chief Justice King said:[12]While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the applicant’s condition of health which existed at the time of the sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence. In R v Green (1918) 13 Cr App R 200 evidence was admitted on appeal to show the true character and value of information given by the applicant to the police before sentence, as disclosed by subsequent events. In R v Ferrua (1919) 14 Cr App R 39 the evidence admitted on the appeal revealed how serious the applicant’s state of health had been when he was sentenced. I think that the events occurring since sentence are admissible to show the extent and implications of the condition of health which the applicant was in when he was sentenced. The evidence which proves the occurrence of those events and which bears generally upon the extent and implications of the AIDS condition from which the applicant was suffering at the time of sentence, meets the tests referred to above for the admission of fresh evidence on appeal.(Emphasis added)[11] (1987) 44 SASR 587.[12] R v Smith (1987) 44 SASR 587 at 588-589 (King CJ, Cox and O’Loughlin JJ agreeing).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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