Habra v Police

[2004] SASC 430

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HABRA v POLICE

Judgment of The Honourable Justice Gray

17 December 2004

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING - WHEN ADMISSIBLE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER

Appeal against sentence imposed by a magistrate - appellant pleaded guilty to aggravated serious criminal trespass of non-residential premises, non aggravated serious criminal trespass in a place of residence, two counts of larceny, three counts of unlawful possession, dishonestly taking property without the owner’s consent and breach of suspended sentence bond - magistrate imposed a sentence of one year and six months, revoked a suspended sentence of 12 months and imposed a total sentence of two years and six months’ imprisonment - non-parole period of one year and six months was fixed - appellant suffered injury while in custody - injury resulted in serious brain injury.

Sentence appealed on grounds that the magistrate failed to take into account a pre-sentence report ordered by the court - appellant sought to place evidence before the appellate court not available at time of sentence - evidence related to head injury and resulting brain injury suffered by the appellant - evidence disclosed appellant's ongoing physical and mental problems - consideration of failure to take into account pre-sentence report - pre-sentence report contained relevant information - failure to take report into account resulted in denial of procedure fairness and a failure to take into account relevant matters - appeal against sentence allowed - sentence imposed by magistrate set aside - appellant re-sentenced.

Consideration of sentencing principles - injury of serious and ongoing nature - appellant's personal circumstances justified a merciful approach - suspended sentence revoked and reduced to a sentence of six months’ imprisonment - one sentence of six months’ imprisonment imposed for all offending pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - sentence and revoked suspended sentenced to be served concurrently - appeal allowed.

Criminal Law Consolidation Act 1935 (SA) s 131, s 170; Summary Offences Act 1983 (SA) s 41(1); Criminal Law (Sentencing) Act 1988 (SA) s 10(c), s 18A, s 58; Magistrates Court Act 1991 (SA) s 42(4); Supreme Court Rules 1988 (SA) r 97.18, referred to.
In re Van Beelan (1974) 9 SASR 163; R v McIntee (1985) 38 SASR 432; R v C (1985) 38 SASR 432; R v Gooley (1995-96) 66 SASR 380; Cobiac v Liddy (1969) 119 CLR 257; Osenkowski (1982) 30 SASR 212; Miceli (1997) 94 A Crim R 327; Carter (1997) 91 A Crim R 222; Clarke [1996] 2 VR 520 at 523; Lowery (1992) 14 Cr App R 485, considered.

HABRA v POLICE
[2004] SASC 430

Magistrates Appeal

GRAY J:

Introduction

1. This is an appeal against sentence.

2. On 2 February 2004 the defendant and appellant, Joseph Habra, pleaded guilty to aggravated serious criminal trespass of non-residential premises, non aggravated serious criminal trespass in a place of residence,[1] two counts of larceny,[2] three counts of unlawful possession and dishonestly taking property without the owner’s consent[3].  He also pleaded guilty to breaching an 18-month good behaviour bond entered into on 9 July 2003 in relation to a series of dishonesty offences.  This bond has been given to support a suspended sentence of 12 months’ imprisonment.

   [1] Section 170(1) of the Criminal Law Consolidation Act 1935 (SA)

   [2] Section 131 of the Criminal Law Consolidation Act 1935 (SA)

   [3] Section 41(10) of the Summary Offences Act 1983 (SA)

3. The sentencing magistrate imposed a total head sentence of one year and six months for all offending.  He revoked the order suspending the term of 12 months’ imprisonment.  When these were added together a total sentence of two years and six months’ imprisonment resulted.  A non-parole period of one year and six months was fixed.  The sentence took effect on 2 February 2004.

4. On 18 February 2004, whilst in custody the defendant was assaulted and suffered a severe head injury.  He was taken to the Royal Adelaide Hospital for emergency surgery.  Later the defendant was admitted to the Brain Injury Rehabilitation Unit of the Hampstead Rehabilitation Centre.  The nature and extent of this injury will be discussed later.

5. At the time of submissions in this appeal, the defendant had been granted bail by a magistrate pending appeal and was under the supervision of the Hampstead Centre.  Before being granted bail he had served six months and nine days in custody.

6. The non-aggravated serious criminal trespass in a place of residence, accompanied by larceny occurred on 10 February 2002.  The defendant’s offending was drug related.  It was said that this was for purpose of providing funds for his drug addiction. 

7. On 9 July 2003 the defendant completed the Magistrate’s Drug Court program.  He had participated in the program under intensive supervision since 5 June 2002.  The magistrate noted that the defendant, whilst participating in the program, had his addiction managed by medication and counselling.  Whilst there were lapses, the defendant completed the program and was thought to be free of illicit drug addiction.  However, the defendant had not disclosed that, four months prior to entering into the program, he had committed the trespass and larceny offences on 10 February 2002.

8. Within eight days of completing the program, the defendant stole numerous items of property including compact discs, ladies jewellery, a stereo, a bicycle and clothing.  Following his arrest for this offending he was granted police bail.  The offending the subject of a charge of unlawful possession was committed within four hours of the defendant’s release on police bail.

9. The further offences of unlawful possession and larceny were committed on 15 August 2003, just over a month after the defendant’s completion of the Drug Court program.

10. The defendant was refused re-entry into the Drug Court program and was brought before the Magistrates Court for sentencing.

    Approach of the Sentencing Magistrate

11. The magistrate regarded the nature of the offending which occurred before entry into the Drug Court program as serious.  It was noted that one of the requirements of the Drug Court program was that a defendant admit all offending to the court.

12. The magistrate described the defendant’s offending after concluding the program as follows:

    The defendant explains that his drug addiction is only part of the motivation for his offending.  I have no doubt it is.  Counsel in detailed and well structured submissions explained that the defendant’s offending was an unfortunate event, and not a return to criminal lifestyle.  The defendant had no clear memory of acquiring the apparently new cycle, except that he believed he found it leaning against a post before riding it away in the city without helmet or lights at 2.45am on the 15^th July, 2003.  Understandably, his antisocial and unsafe activity drew police attention to him.  An arrest followed which the defendant complained was unduly rough.  The prosecution version appears in the apprehension reports.  The defendant was bailed by police.  Suffering pain, the defendant sought shelter at his dwelling.  There his friends administered a cocktail of prescription drugs to ease his plight.  The effect was to cause the defendant to become intoxicated to such an extent that on a bus later, he could not explain his subsequent circumstances that same day and while on police bail.  Summonsed by a bus driver to King Williams Street, the defendant was located by police disembarking with a great deal of valuable jewellery and personal effects protruding untidily from his clothing.  The defendant’s explanation to police regarding how he came by the property 4 hours after release from custody brought about his immediate arrest.  The defendant is now unable to say how he came by such valuable and personal property.

13. During sentencing submissions, material was placed before the court suggesting that at the time of the offending the defendant was suffering from depression.  The magistrate observed:

    One must say that upon the conflicting material carefully assembled by counsel and tendered to the court, the defendant’s associations can turn to violence, and the depression from which it is suggested he suffers is not the subject of consistent medical opinion.  Moreover, if the reports are read, Dr White was not the first person to discover depressive symptoms.  Burdekin Clinic was aware of the condition in 2001.  I might add with regret it is a common mental condition to those addicted to illicit substances.

14. It was submitted by counsel for the defendant at the time of sentencing that medical evidence before the court revealed that the defendant continued to display “significant symptoms of paranoia, traumatic stress and physiological anxiety”.  It was further submitted that the Drug Court failed to have the defendant psychologically examined and as a result was unaware of the appropriate rehabilitation path to be undertaken.  It was said that the deaths of the defendant’s father and brother contributed to the defendant’s depression and drug addiction.

15. The magistrate was not prepared to accept the submissions of counsel as providing an acceptable explanation or excuse for the offending:

    The history of illicit drug taking relies on the defendant as the historian.  The evidence before the court suggests that the defendant is well able to provide misleading information, and he is not necessarily by nature a truthful person.  One has the defendant’s word that the day of offending was one of aberration of consumption in a post Drug Court illicit drug free lifestyle.  The defendant’s word must be accepted as the only evidence available in relation to events of the day.  However, actions so soon after his graduation while managed with medication and other supports speak more truthfully than his words about his criminal motivation.  The actions negated 12 months of relatively close observation ending less than a month beforehand.  The recommendations for dealing with the mental conditions appear on pages 9 and 10 of Dr White’s report.  The defendant has been well aware of the facts causing his diagnosed symptoms for a very long time.  He is intelligent enough, if motivated, to have drawn these facts to the current medical treatment regime and his most recent clinicians to indicate the need for assistance, assuming that it has not been given in the past.

16. The magistrate declined to treat drug addiction as a mitigating factor or as constituting any excuse for the defendant’s behaviour.  However, participation in the Drug Court program was considered a “practical display of his desire to overcome his addiction and consequent offending”.

17. The magistrate took the view that there was a need for the sentence imposed to act as a personal deterrent as well as to provide protection to the community.  The magistrate concluded:

    The most intensive assistance that can be offered to have the defendant take control of his behaviour has been given.  The defendant must exercise some responsibility himself for his own rehabilitation and future criminal conduct without causing suffering to other victims in the community by his failure to do so.  I extend the non parole period to one year and six months from today, allowing the defendant a further 12 months if eligible for parole and to remedy the psychological conditions that have caused his offending, and addiction.  Once he has addressed these issues, one would hope the defendant emerges from prison with a new resolve not to offend seriously.

    Grounds of Appeal

18. Counsel for the defendant submitted that the magistrate made a number of sentencing errors.  In particular it was said that the magistrate:

    -       erred in determining to revoke the suspended sentence;

    -       erred in imposing a sentence that was manifestly excessive;

    -erred in refusing to find there were proper grounds to proceed pursuant to section 58(3) of the Criminal Law (Sentencing) Act 1988 (SA);

    -erred in making a number of incorrect statements during his sentencing remarks.  In particular the magistrate:

    .       incorrectly utilized the defendant’s non-disclosure of the offences of criminal trespass and larceny of 10 February 2002;

    .       incorrectly described the value of the property the subject of the unlawful possession charge as ‘enormous and valuable’ when no evidence had been adduced to that effect;

    .       erred in suggesting that he had declined to order a pre-sentence report when he had in fact ordered such a report;

    .       erred in describing the defendant’s plea as at a ‘later stage’ when the plea occurred as soon as practicable;

    -failed to give any or adequate consideration as to whether to reduce the term of the suspended sentence pursuant to section 58(4) of the Sentencing Act 1988 (SA);

    -failed to make any reduction of sentence in respect of the February 2002 serious criminal trespass and larceny offences by virtue of the delay in bringing the prosecution;

    -failed to consider the February 2002 offending as a course of conduct within the meaning of section 10(c) of the Sentencing Act;

    -failed to make any allowance for 10 days spent in custody prior to sentence;

    -failed to reduce the total accumulated periods of imprisonment having regard to the principle of totality;

    -erred in imposing a single sentence of four months’ imprisonment for the two offences of theft and unlawful possession without invoking the power to do so pursuant to section 18A of the Sentencing Act;

    -failed to have any or adequate regard to the nature and extent of the defendant’s mental condition or personal circumstances;

    -failed to have any or adequate regard to the defendant’s cooperation with the authorities in respect of his performance of community service.

    Consideration of Issues on Appeal

    Pre-Sentence Report

19. On 18 December 2003 a pre-sentence report was ordered by the Magistrates Court.  The report was completed by a Community Corrections Officer and sent to the court on 3 February 2004.  Sentencing submissions were heard on 30 January 2004.  Sentencing remarks were delivered on 2 February 2004, prior to the magistrate’s receipt or consideration of the pre-sentence report.

20. Counsel for the Crown conceded that the magistrate erred in not considering or taking into account the pre-sentence report.  This report was not in the court’s possession at the time of sentencing but arrived some days after sentence was pronounced.  It was accepted that the magistrate should have delayed sentencing until the report ordered by the court was available.  It was also accepted that on this basis there was an error in the sentencing process and that, in the circumstances, it was open to this Court to re-sentence the defendant.

21. The pre-sentence report was tendered on appeal.  The report disclosed details of the defendant’s long-standing history of drug abuse and his involvement in the drug treatment program.  It was reported that the defendant had been drug free for at least part of the previous six months.  It was noted that he had reported for supervision regularly and consistently during his good behaviour bond, participated well in community service obligations and had been willing to engage in counselling in relation to his offending.  It was reported:

    Mr Habra has reported for supervision regularly and consistently during his current good behaviour bond and respective period of Bail.  He has been compliant with the supervision process and has been willing to engage in counselling about his offending and rehabilitation.  He appears to be willing to address his offending behaviour to the best of his ability.

    Although Mr Habra appears to have made a genuine attempt over the years to combat his drug addiction, progress has only been limited.  The long standing nature of the problem is of concern.  Although he appears to be maintaining his drug-free status at the present time with the help of medication, the extent of the problem and its duration over 25 years is indicative that abstinence may be difficult for him to maintain.

    The pre-sentence report provided support for the submission that the defendant was making genuine attempts to control his drug addiction but indicated that given his long standing addiction, it was difficult for the defendant to remain drug free at all times.

22. At the time of sentencing, the magistrate was not fully prepared to accept the defendant’s expressions of genuineness including his desire to overcome his drug problems.  The pre-sentence report allows an alternative conclusion to be drawn.  As earlier observed, the report records that the defendant “appears to have made a genuine attempt” to address his drug addiction.  By failing to consider the ordered pre-sentence report, the magistrate failed to take into account matters material to sentence.  As a result, the defendant was sentenced on incomplete material.

23. In addition to the relevance of the contents of the pre-sentence report, the failure of the magistrate to consider the report gives rise to concerns about procedural fairness.  The report was ordered by the court.  The defendant was interviewed at the Adelaide Community Corrections Centre on 21 January 2004 for the purposes of compiling the report.  This gave rise to an expectation that the report would be considered by the court prior to sentencing.  This was the only logical inference that could have been drawn from the ordering of the report.

24. The magistrate’s failure to consider the report constituted a denial of procedural fairness, particularly when the magistrate considered what he believed to be the defendant’s lack of genuineness in relation to his desire to overcome his drug addition as a material matter when sentencing.  The pre-sentence report, had it been considered, would have shed light on the issue of the defendant’s willingness to overcome his drug addiction and was relevant to his prospects of rehabilitation and the need for personal deterrence.  It should be pointed out that the magistrate, the prosecutor and counsel for the defendant all appear to have overlooked the outstanding report.

25. The magistrate’s failure to consider the pre-sentence report constituted a failure to take into account relevant information when sentencing and was a denial of procedural fairness.  As earlier observed, this error was acknowledged by counsel for the Crown.  In view of this concession by the Crown it is not necessary to consider the further grounds of appeal advanced by counsel for the defendant with the exception of the question of the reception of further evidence.  In the circumstances it is appropriate to re-sentence the defendant.

    Further Evidence

    Assault in Custody

26. As earlier observed, whilst serving the sentence of imprisonment the subject of the present appeal, the defendant was assaulted and suffered a severe head injury.  On 18 February 2004 he was found unconscious in his cell at Yatala Labour Prison.  He had sustained severe head injuries, was observed to be having seizures and was admitted to the Royal Adelaide Hospital for emergency neuro-surgery. 

27. On the hearing of the appeal counsel sought to tender medical evidence in relation to severe head injuries sustained by the defendant whilst in custody.  Of particular relevance were reports of Dr Hooper and Dr Upton from the Hampstead Rehabilitation Centre.

1. The defendant was admitted to the Brain Injury Rehabilitation Unit of the Hampstead Rehabilitation Centre on 25 March 2004.  In his report dated 5 August 2004 Dr Hooper observed:

   On 18^th February 2004 [the defendant] was found unconscious in his cell at Yatala Prison.  Subsequently seizure activity was observed.  [The defendant] was admitted to Royal Adelaide Hospital.  Continuing seizure activity was recorded.  He was unresponsive with dysconjugate gaze.  There was a contusion on the left side of his chest and a boggy scalp contusion on the left side of his head.  CT head was performed and showed subdural and extradural haematomas.

   That same day [the defendant] underwent neuro-surgery with right fronto-temporo-parietal craniectomy (removal and storage of part of the skull bone) and evacuation of the subdural haematoma.  An intracranial pressure monitor was inserted.  CT scan the following day reported increasing size of intra-cerebral lesions and he returned to theatre for right temporal lobectomy (removal of part of the brain tissue) and left temporal craniotomy for evacuation of extradural haematoma.

   On 24^th February a tracheostomy was inserted for continuing care.

2. Dr Hooper reported that on 29 February 2004 the defendant opened his eyes and by 22 March 2004 he was whispering single words.  He continued to require a percutaneous endoscopic jejunostomy for internal feeding, had weakness in all limbs and his recovery was adversely affected by left sided pneumonia and gastric stasis.

3. Upon admission to the Brain Injury Rehabilitation Unit on 25 March 2004 the defendant was described as confused, restless and uncooperative.  It was said that his speech was “dysphonic and dysarthric and moderately intelligible”.  His condition limited his participation in examination and therapy.

4. Dr Hooper reported that since his admission to the Unit, the defendant had made significant gain in all areas.  However, his brain injuries appear to have left him with permanent mental and physical disabilities.  On 5 August 2004, Dr Hooper noted:

   [The defendant] is continuing to participate in a multi-disciplinary residential rehabilitation program that includes input from medical, nursing, physiotherapy, speech pathology, psychology, neuro-psychology, occupational therapy, recreational therapy, dietetics and social work.

   Currently [the defendant] has slowed cognitive functioning.  He copes effectively with simple, direct communications.  He is eager to please and cooperative with therapy.  His memory is significantly impaired and his speed of thought processing is severely reduced and hence he cannot keep up with fast communication or moderately complex content.

   It was said that the defendant remained moderately dependent, was walking unsteadily, had impaired coordination and endurance and had limited ability to interact with other persons, particularly in stressful or confusing situations.  It was further noted that he remained physically at risk with reduced balance and increased risk of falls.  He was described to be at increased risk of post-traumatic epilepsy.  Dr Hooper recommended 24-hour supervision in a supported environment.

5. In a neuropsychological assessment report dated 6 August 2004 Dr Upton summarised the defendant’s condition as follows:

   It is estimated that prior to his injury [the defendant] would have functioned within the low average range.  Results from the current assessment follow.  Attention was within normal limits, but immediate memory was moderately impaired and cognitive processing speed was severely limited.  There was a severe reduction in the ability to learn, and retain new information, and carry out visual-constructional tasks.  There was also subtle executive dysfunction in terms of impulsivity, and reduced ability to inhibit emotional responses and to persist at challenging tasks.  These deficits are consistent with the severe head injury that [the defendant] has sustained.  Because of his severely reduced level of functioning it is the opinion of the treating team that [the defendant] will require 24-hour supported care to ensure that he carries out the activities of daily living adequately, and that his daily needs are met.

6. Dr Upton made the following recommendations for the defendant’s future care and rehabilitation:

   -to assist in reduced speed of processing – speak slowly, and present instructions for each component of a task separately.

   -to facilitate practical problem solving – give instructions well ahead of time, and provide ample time to plan and carry out tasks.

   -to assist in decreased spontaneous recall of new information, provide prompts to repeat information when necessary.

   -because of his reduced initiation [the defendant] is likely to need prompts and reminders to carry out new or required activities.

   -because of [the defendant’s] reduced stamina, monitor fatigue and mood levels.

7. On 30 July 2004 Dr Holmwood, Director of the South Australian Prison Health Service, reported that following the emergency brain surgery the defendant’s function was “significantly poorer than previously”.  It was said that his improvement since the surgery had been disappointing.  Dr Holmwood summarised the defendant’s condition as at July 2004 as follows:

   -He requires 24-hour supervision

   -He needs assistance with most activities of daily living (bathing/showering/eating /dressing/toileting).

   -He has difficulty with swallowing and dribbles.

   -He needs supervision with eating due to a predisposition to choking on food.

   -He walks with a walker but needs close supervision due to general unsteadiness.  At other times he uses a wheelchair.

   -His behaviour is occasionally explosive.  He lacks any insight into his experience or his predicament.

   -He spends a considerable portion of his day time lying on his bed, calling out “hello” to staff who walk by.

   Dr Holmwood considered that the Prison Health Service could “probably just” accommodate the defendant’s needs within the infirmary at Yatala Labour Prison.  He concluded that the defendant would not be suitable for general placement in prison.

   Police Investigation of the Incident

8. In a letter addressed to counsel for the Crown dated 30 August 2004 Mr Mann, Manager of B Division Yatala Labour Prison, advised that the South Australian Police were managing an investigation into the injuries sustained by the defendant on 18 February 2004.  Mr Mann said:

   Members of Major Crime and Holden Hill CIB conducted the investigation and to this day, the file remains open.  [The defendant] has been interviewed on several occasions but has not been able to assist in clarifying the cause of his injuries.  I and the Department will continue to rely on SAPOL [South Australian Police] for a result into this incident.

   … I … wish to advise you that every effort will be made by the Department to manage those concerns including if necessary, his placement on protection.

   Counsel for the Crown submitted that there was some suggestion that the defendant had been assaulted by other prisoners.  However, no witnesses have been prepared to speak to police about the matter.

   Reception of Further Evidence on Appeal

9. This Court is invested with the power to receive further evidence on the hearing of an appeal from a magistrate by section 42(4) of the Magistrates Court Act 1991 (SA) which provides:

   On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.

10. The reception of fresh evidence on appeal is also addressed by Rule 97.18(b) of the Supreme Court Rules 1988 (SA) which provides:

    On the hearing of an appeal governed by Rule 97 the Court:

    …

    (b)     may in its discretion receive further evidence upon any question of fact;

    …

11. It is well established that the power to receive further evidence on appeal must be exercised with caution.  In In re Van Beelan[4] the following principles were identified:

    -      the ultimate question is whether there has been a miscarriage of justice.

    -      the additional evidence must be such that it would have been admitted at the trial

    -the additional evidence must of be such substantial importance and of such cogency, plausibility and relevancy that when considered with the other evidence given at the trial the result ought in the minds of reasonable men to remove the certainty of guilt which the former evidence produced

    -in considering whether a miscarriage of justice has occurred great importance will generally be attached to whether a deliberate choice was made by the defence not to call the evidence and the probative force and nature of the evidence produced at the trial.

    In R v McIntee[5] King CJ observed:

    The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice … appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.

    [4] (1974) 9 SASR 163 at 183-184

    [5] (1985) 38 SASR 432 at 435

12. Counsel for the Crown submitted that the evidence relating to the injuries the defendant sustained in custody did not constitute fresh evidence.  It was said that the injuries did not exist at the time of sentencing, that they did not shed any light on any matter before the magistrate at the time of sentencing and that as considerations such as a defendant’s character and prospects for rehabilitation are always before the court at sentencing, the further evidence should not be received on appeal.

13. It was further submitted by counsel for the Crown that the scope of the power to receive further evidence on appeal must be governed by the interests of justice.  It was said that such evidence could be received where it has been established that the new material could have been tendered at the time of sentencing but was not tendered out of error or oversight, or that the material was in existence at the time of sentencing but was not obtained due to a lack of diligence or for some other reason.  It was contended that the power to receive further evidence ought to be restricted in order to preserve the finality of the sentencing process.  It was said that the personal circumstances of defendants sentenced for criminal offences develop and change over time but that further evidence as to personal circumstances should not be admitted as fresh evidence so as to warrant appellate intervention except in extraordinary circumstances.  Counsel referred to the recent decision of the South Australian Court of Criminal Appeal R v C[6] where it was observed:

    … [U]sually evidence of events occurring after sentence is passed is incapable of demonstrating an error by the sentencing judge that would enliven the power to set aside a sentence as erroneous, in exercise of the power conferred by s 353(4) of the CLCA. However, such evidence may establish that a matter that the sentencing court treated as material is now to be seen in a new light, or has a new significance, as a result of events occurring after sentence that were not anticipated and, usually, could not reasonably have been anticipated. In such cases, because the evidence of matters occurring after the passing of sentence will throw new and significant light on a matter relied on by the sentencing court, the evidence will be admitted and can be acted on. For present purposes it is not necessary to decide whether, in a case in which evidence of facts occurring after sentence is admitted, the court must be satisfied in the light of that evidence that the sentence passed can be said to be erroneous, or whether, having admitted the evidence, the court simply reconsiders the sentence in the light of all the circumstances including the further information: ….

    If the evidence of matters occurring after sentence is merely evidence of a new fact or event, not bearing upon a matter that was material at the time of sentence, and being significant only because it would be material were sentence to be passed at the time of appeal on the basis of all material then available, the evidence will not be admitted, or if admitted will not provide a basis for interference on appeal.

    The distinction which is drawn by the cases is one based on practice rather than on logic, but in my opinion the practice reflects a sound distinction of principle. As well, there are solid practical justifications for the cautious approach that has been taken.

    [6] R v C [2004] SASC 244 at [32]- [34]

14. Counsel for the Crown drew attention to the risk that, if the scope for the admission of further evidence is interpreted too broadly, appeals against sentence may unduly assume the character of appeals de novo.  It was said that the traditional course to be followed by a convicted offender seeking reconsideration of sentence in light of subsequent developments is the prerogative of mercy.

    Conclusion on Further Evidence

15. The Court is entitled to consider the further evidence adduced by the defendant on two grounds: the Crown’s concession that the further evidence ought to be considered when re-sentencing; and pursuant to the powers of this Court to receive further evidence when hearing a magistrate’s appeal against sentence.

16. The further evidence throws new light on a number of the observations made by the magistrate when sentencing.  The magistrate sentenced on the basis that the defendant was of full intelligence, needed personal deterrence and was a person who would respond appropriately to a custodial sentence.  The further evidence paints quite a different picture.  The defendant appears to have suffered considerable and possibly permanent brain injuries as a result of an assault which occurred in custody.  There have been serious consequences for his health. 

17. Further, the fact that the defendant sustained serious head injuries as a result of an allegedly criminal assault while in custody suggests that his time in custody has been particularly onerous.  He has been a victim of violence. It has been accepted that the risk of assault is a relevant matter to consider when determining an appropriate penalty.  For example, in R v Gooley[7] Doyle CJ observed:

    … I am prepared to make a small allowance despite this on the basis that the sentence which the appellant serves will be served under circumstances in which he will be at risk of harm and under special restrictions necessary to provide him with adequate protection.  It is not possible to quantify with any precision the allowance which I make, but it is a small one.

    If returned to prison, the defendant is likely to find the experience overwhelmingly difficult, not just as a result of his physical and mental disabilities but also due to the fear of such violence occurring again.  The medical evidence before the court indicates that the defendant would have difficulty responding appropriately to situations of confrontation and would require continuous supervision in order to participate in day-to-day tasks.

    [7] (1995-96) 66 SASR 380 at 383

    Re-sentence

18. The catastrophic consequences of the assault suffered by the defendant whilst in custody and the resultant disabilities constitute special circumstances that allow for a merciful approach to be taken to the re-sentencing of the defendant.[8]  Such an approach was not opposed by the Crown.  Given the nature and extent of the disabilities and the manner in which they were sustained, the defendant should not be returned to custody. 

    [8] See Cobiac v Liddy (1969) 119 CLR 257 at 269; Osenkowski (1982) 30 SASR 212 at 212-213; Miceli (1997) 94 A Crim R 327; Carter (1997) 91 A Crim R 222; Clarke [1996] 2 VR 520 at 523; Lowery (1992) 14 Cr App R 485. See also Fox ‘When Justice Sheds a Tear: The Place of Mercy in Sentencing’ (1999) 25(1) Monash University Law Review 1 at 25.

19. In the special circumstances of this case, the combination of the time the defendant has spent in custody and the consequences of the assault operates as sufficient punishment for all of the defendant’s offending.  No further penalty should be imposed. 

20. In relation to the breach of the suspended sentence good behaviour bond entered into on 9 July 2003, the suspended sentence should be revoked. Pursuant to section 58(4) of the Sentencing Act 1988 (SA), where a court revokes a suspended sentence, the term of that sentence can be reduced where special circumstances exist. Section 58(4) provides:

    (4)     Where a court revokes the suspension of a sentence of imprisonment, the court—

    (a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;

    (b)     may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;

    ...

    (c)     may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.

    The special circumstances referred to earlier justify the reduction of the term of the suspended sentence.  The term of the suspended sentence imposed by the magistrate is reduced from 18 to six months. 

21. In relation to all of the defendant’s offending, pursuant to section 18A of the Sentencing Act 1988 (SA), one head sentence of six months is imposed.  This sentence is backdated to commence on 2 February 2004.  This sentence is to be served concurrently with the revoked suspended sentence[9] and has now been served.

    [9] A sentencing judge has a discretion to make any sentence of imprisonment for the breaching offence concurrent with the revoked suspended sentence.  See Appleton v R (Unreported, CCA, 22 September 1995, No S5265) and R v Drumgoon  (Unreported, CCA, 13 December 1995, No S5382).  See also Lunn, Criminal Law in South Australia, at [10,295.9]

22. The following orders are made:

    -       the appeal is allowed;

    -       the sentence imposed by the magistrate is set aside;

    -       the order revoking the suspended sentence is set aside;

    -the suspended sentence is revoked and reduced to a sentence of six months’ imprisonment;

    -the defendant is re-sentenced pursuant to section 18A of the Sentencing Act to the one sentence for all offending, namely to a term of imprisonment of six months.

    -the sentence and the revoked and reduced suspended sentence are to be served concurrently and backdated to commence on 2 February 2004;