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

This is an appeal against sentence.
On 2 February 2004 the defendant and appellant, Joseph Habra, pleaded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] SASC 430
Decision Date: 17 December 2004

CaseChat Overview and Summary

The appeal in Habra v Police arose from a sentence imposed by a magistrate after the appellant pleaded guilty to various charges, including aggravated serious criminal trespass, non-aggravated serious criminal trespass, larceny, unlawful possession, and breach of a suspended sentence bond. The appellant's original sentence was one year and six months, with an additional year and six months imposed after the magistrate revoked a previous suspended sentence, resulting in a total sentence of two years and six months' imprisonment. The non-parole period was set at one year and six months. The appellant subsequently suffered a serious brain injury while in custody, which became a critical factor in the appeal.

The primary legal issues before the court were whether the magistrate's failure to consider a pre-sentence report amounted to a denial of procedural fairness and whether fresh evidence regarding the appellant's brain injury could be admitted. The court also had to determine whether the initial sentence was excessive and if the principles of totality and mercy warranted a re-sentencing. Counsel for the Crown conceded that the magistrate's failure to consider the pre-sentence report was an error, thereby justifying the need for re-sentencing.

The court acknowledged that the magistrate's failure to consider the pre-sentence report constituted a procedural error, leading to a denial of fairness. Given this concession, the court did not need to delve into other grounds of appeal. The appellant had suffered a severe head injury while in custody, leading to significant ongoing physical and mental health issues. The court concluded that these circumstances justified a merciful approach and re-sentenced the appellant. The court imposed a sentence of six months' imprisonment for all offences, to be served concurrently with the revoked suspended sentence, under section 18A of the Criminal Law (Sentencing) Act 1988 (SA). The appeal was allowed, and the original sentence was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EvidenceAssault in Custody 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. 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. 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 18th 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 24th February a tracheostomy was inserted for continuing care. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 AppealPre-Sentence Report 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. 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.