IT v Knight
[2020] ACTSC 101
•28 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | IT v Knight |
Citation: | [2020] ACTSC 101 |
Hearing Date: | 17 July, 25 October 2019 |
DecisionDate: | 28 April 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [64] |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – Appeal from Magistrates Court – appeal against sentence – whether sentence manifestly excessive – whether conviction should have been entered – whether further evidence should be admitted in an appeal by rehearing – resentence upon admitting further evidence without a finding of error |
Legislation Cited: | Agents Act 2003 (ACT) Crimes (Sentencing) Act 2005 (ACT) ss 33, 17 Criminal Code 2002 (ACT) s 324 Legislation Act 2001 (ACT) ss 137, 138, 139, 140, 144 Magistrates Court Act 1930 (ACT) ss 207, 208, 214 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 |
Cases Cited: | 2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Acuthan v Coates (1986) 6 NSWLR 472 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Atmore v Milner [2016] ACTSC 260 Balthazaar v The Queen [2012] ACTCA 26 Barron v Laverty [2019] ACTSC 198 Betts v The Queen [2016] HCA 25; 258 CLR 420 Campbell v Fortey (1987) 85 FLR 462 CIC Insurance Ltd v Bankstown Football Club ltd [1997] HCA 2; 187 CLR 384 Commissioner for ACT Revenue v Dataflex Pty Ltd and ACAT [2011] ACTCA 14; 5 ACTLR 271 Edwards v Marinus [2010] ACTSC 57 Fallon v Baker [2018] ACTSC 319 Federal Commissioner of Taxation v Consolidated Media Holdings Limited [2012] HCA 55; 250 CLR 503 Foulkes v Coles [2017] ACTSC 178 Greenwood v Beale [2018] ACTSC 46 Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 House of Pearce Pty Ltd v Bankstown City Council [2000] NSWSCA 44; 48 NSWLR 498 House v The King (1936) 55 CLR 499 Islam v Wasley [2014] ACTSC 127 Khoury v The Queen [2011] NSWCCA 118; 209 A Crim R 509 Kuzmanovski v NSW Lotteries Corporation [2010] FCA 876; 270 ALR 65 Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 R v Latimore & Ors (1975) 52 Cr App R 53 Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 Lumby v Cooper [2008] ACTSC 53 Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Mearns v Neil [2016] ACTSC 36 Moroney v Wojcicka [2003] ACTCA 15; 143 A Crim R 1 O’Brien v The Queen [2015] ACTCA 47 Owen v The Queen [2017] NSWCCA 54 Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 Peverill v Crampton [2010] ACTSC 79 Preston v Carnall [2015] ACTSC 325; 300 FLR 302 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Proud v Sladic [2014] ACTCA 26 R v Eliasen (1991) 53 A Crim R 391 R v Ferrua (1919) 14 Cr App R 39 R v JJ [2014] ACTCA 23 R v Latimore & Ors (1975) 52 CAR 53 R v Nguyen [2006] VSCA 184 R v Smith (1987) 27 A Crim R 315 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 Saga v Reid [2010] ACTSC 59 SAS Trustee Corporation v Miles [2018] HCA 55; 265 CLR 137 SE v Ruhen [2019] ACTSC 190 Subasic v Williams [2018] ACTSC 207 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 TAL Life Ltd v Shuetrim [2016] NSWCA 68; 91 NSWLR 439 |
Texts Cited: | Beazley et al, Appeals and Appellate Courts in Australia and New Zealand, (2014, LexisNexis Butterworths) |
Parties: | IT (Appellant) Kimberley Knight (Respondent) |
Representation: | Counsel P Bevan (Appellant) M Wall (Respondent) |
| Solicitors Bevan & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 18 of 2019 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Campbell Date of Decision: 29 March 2019 Case Title: Knight v IT Court File Number: CC18/12410 |
LOUKAS-KARLSSON J
Introduction
IT (the appellant) appeals from a sentence imposed in the Magistrates Court on 29 March 2019. The appellant was convicted and sentenced for an offence of unlawful possession of stolen property contrary to s 324(1) of the Criminal Code 2002 (ACT). The sentence imposed was a 12-month good behaviour order.
Jurisdiction
The Supreme Court’s appellate jurisdiction in relation to sentence appeals from the Magistrates Court is derived from ss 207 and 208 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act).
Grounds of Appeal
By way of Notice of Appeal dated 29 March 2019, the appellant listed the following two grounds of appeal:
(a)that the penalty imposed was manifestly excessive; and
(b)that the Magistrate failed to properly consider or apply criteria contained in s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
Facts
On Friday 17 August 2018, the appellant was stopped by police conducting a traffic patrol. The appellant gave written permission for police to search her car. Police located a large amount of property in the vehicle’s boot which they believed to be stolen. The appellant was unable to identify where the items originated from or when they had been taken. The Statement of Facts indicated she was “cooperative and remorseful”.
Before the Magistrate were the following documents: the Statement of Facts, the criminal history of the appellant, a summary letter in relation to her health, a reference in support of the appellant and a copy of the appellant’s real estate licence.
The criminal history of the appellant includes convictions for PCA offences. The appellant has been dealt with in NSW on a number of occasions under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
Counsel in the Magistrates Court submitted that the appellant worked in real estate and would lose her license if convicted for a dishonesty offence pursuant to s 27 of the Agents Act 2003 (ACT) (Agents Act).
Further evidence
The appellant sought to have further evidence admitted on appeal.
The relevant statutory provision dealing with the admission of evidence in an appeal to the Supreme Court is s 214 of the Magistrates Court Act. Section 214 provides as follows:
214 Appeals in cases other than civil cases
(1) This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies).
(2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
(3) In an appeal to which this section applies, the Supreme Court must—
(a) if it considers it necessary or expedient to do so in the interests of justice—
(i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and
(ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and
(iii) receive the evidence, if tendered, of any witness; and
(b) receive evidence with the consent of the parties to the appeal.
(4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
(emphasis added)
10. It appears that ss 214(3) and 214(4) represent separate avenues for admission of evidence.
11. With respect to further evidence on appeal, a distinction is sometimes drawn between “fresh” and “new” evidence. “Fresh” evidence being evidence which the appellant was unaware of and could not have obtained with reasonable diligence. “New” evidence being evidence available at the time but not used or evidence that could have been obtained with reasonable diligence: Khoury v The Queen [2011] NSWCCA 118; 209 A Crim R 509. A Court of Criminal Appeal has flexibility to receive new evidence where it is necessary to do so to avoid a miscarriage of justice: Betts v The Queen [2016] HCA 25; 258 CLR 420 at [2]; [10].
12. In this jurisdiction the terms fresh and new have been referred to on occasion, in the context of s 214 and appeals from the Magistrates Court: see Subasic v Williams [2018] ACTSC 207 (Subasic) at [14]; SE v Ruhen [2019] ACTSC 190 (Ruhen) at [26]. Nevertheless, it has also been noted that the statutory provisions of s 214 make further evidence more readily admissible than in an appeal to a Court of Criminal Appeal concerning an offence on indictment: Sagav Reid [2010] ACTSC 59 at [75] (Saga).
13. Importantly, it is not apparent from a plain reading of the text that s 214(3) only applies to “fresh evidence”. In Greenwood v Beale [2018] ACTSC 46 (Greenwood) at [41]-[42] Mossop J stated in discussing s 214(3), that there are three distinct situations contemplated by s 214. First, under s 214(3)(b) referring to “consent of the parties”. Second, under s 214(4) referring to “reasonable explanation for the failure to adduce”. He elaborated as follows in relation to the third, s 214(3)(a)(i)-(iii):
There are three different situations contemplated by s 214. [after referring to reception under s 214(3)(b) and s 214(4)] …Third is the situation contemplated by sub-ss (3)(a)(i) to (iii). … All of these powers are discretionary powers which arise if the Court “considers it necessary or expedient to do so in the interests of justice”; s 214(3)(a). It is clear that these generally stated powers go beyond the first two categories because they are clearly distinct from the obligation to receive further evidence set out in the other paragraphs of sub-s (3). Further, the reference to it being “necessary or expedient to do so in the interests of justice” makes it clear that they are discretionary powers and hence extend beyond the circumstances in sub-s (4) which result in an obligation rather than a discretion to receive further evidence. Although sub-ss (3)(a)(i) and (ii) appear to relate to obtaining access to documents, things or persons rather than receipt of further evidence, they carry with them an implication that the documents, things or persons may be put before the Court as evidence on the appeal.
14. In a similar vein, earlier in Campbell v Fortey (1987) 85 FLR 462 at 465 (Campbell), Miles CJ emphasised the broad nature of the discretion under s 214(3):
Sub-section (4) imposes a duty on the court to receive further evidence, if the conditions of the sub-s. are met, but sub-s. (4) in no way restricts the power to receive further evidence under sub-s. (3), if the court thinks it necessary or expedient in the interests of justice.
15. Miles CJ relied on the interpretation of analogous provisions under the Criminal Appeal Act 1968 (UK) made by the English Court of Appeal in R v Latimore & Ors (1975) 52 Cr App R 53. At 56 the Court used the language adopted by Miles CJ at [14] and continued:
Thus there will be cases in which, though the conditions of subsection (2) [the equivalent of s 214(4)] are not met and there is no requirement that the Court must receive the tendered evidence, the Court may do so, if it thinks it necessary or expedient in the interests of justice.
16. Additionally, I note the caution expressed by Miles CJ (at 467) in relation to withholding evidence.
Statutory construction
17. That questions of statutory construction must be “determined by reference to text, context and purpose” of the Act in question is uncontroversial (Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 at [10]).
18. In approaching the task of construing s 214 it is appropriate to elaborate on this process by reference to a number of principles.
19. First, regard must be had to the appropriate starting point for the task of construction, that is the text of the statute itself. See: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362; SAS Trustee Corporation v Miles [2018] HCA 55; 265 CLR 137 at [20]. A clear reading of the text supports the analysis undertaken by Miles CJ in Campbell and Mossop J in Greenwood.
20. Second, when considering the text of the Act, it must be read with regard to, and consistently with, the provisions of the Act as a whole (Legislation Act 2001 (ACT) (Legislation Act) s 140; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]). I have had regard to the provisions of the Act as a whole.
21. Third, when construing a particular word, a court may take judicial notice of the fact of an ‘ordinary meaning’ of a word, and can do so with the assistance of an authoritative dictionary. See: Kuzmanovski v NSW Lotteries Corporation [2010] FCA 876; 270 ALR 65 at [37] - [38]; House of Pearce Pty Ltd v Bankstown City Council [2000] NSWSCA 44; 48 NSWLR 498 at [33]; 2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488 at [81]; TAL Life Ltd v Shuetrim [2016] NSWCA 68; 91 NSWLR 439 at [80]. I have had regard to the ordinary meaning of the words of the section.
22. Fourth, consistent with the approach described in SZTAL, context and purpose should not be considered at some later stage, including legislative history and extrinsic materials (Federal Commissioner of Taxation v Consolidated Media Holdings Limited [2012] HCA 55; 250 CLR 503 at [39]). Some uncertainty exists as to the requirement for the statutory text to present an ambiguity before referral can be made to extrinsic materials (see CIC Insurance Ltd v Bankstown Football Club ltd [1997] HCA 2; 187 CLR 384 at 408; A2 v R [2018] NSWCCA 174 at [477]; cf Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [33]). However, there is authority in this jurisdiction at least that such an ambiguity is not required: Commissioner for ACT Revenue v Dataflex Pty Ltd and ACAT [2011] ACTCA 14; 5 ACTLR 271. See also: Legislation Act ss 137(2), 138, 144. In my view there is no ambiguity on an analysis of the text. Nor have I been referred to any relevant extrinsic materials.
23. Fifth, in any event, in this jurisdiction, where multiple possible interpretations of an Act are open, the interpretation which “best achieves” the purpose of the Act is to be preferred to any other interpretation (Legislation Act s 139).
Conclusion on admission of further evidence
24. As a matter of statutory interpretation and in particular having regard to the clear meaning of the text, it is clear that s 214(3) is not restricted to “fresh” evidence as such. This analysis is also supported by authority as discussed above. In particular see: Greenwood v Beale [2018] ACTSC 46 at [41]-[42]; Campbell v Fortey (1987) 85 FLR 462 at 465. In my view it is both necessary and expedient to admit the evidence, in the interests of justice.
25. The further evidence admitted in these proceedings include the following. Exhibit 1 is a psychological treatment report regarding the appellant authored by Ms Felicity Riddle, a clinical psychologist, dated 30 September 2019. The report details the appellant’s health conditions and substance abuse history, psychological and mental health diagnoses, and describes current and proposed future treatments and prognoses. Exhibit 2 is a letter from Directions ACT dated 2 October 2019 which states that the appellant made contact with the service on 22 November 2018 seeking assistance and support with respect to her substance use. Since her initial intake assessment on 7 December 2018 she had attended 12 counselling and drop-in sessions with Alcohol or Other Drug (AOD) counsellors in person and via telephone. It states that during those sessions the appellant addressed issues including relapse prevention and management, responses to traumatic experience and accessing supports, and working with stressful life situations and processes. The further evidence is discussed in greater detail below, including the further oral evidence of the appellant along with the psychological report.
Further oral evidence of the appellant
26. On 17 July 2019, the appellant gave oral evidence before me. She confirmed that she has been seeing a psychologist and had been dismissed from her real estate company, although had been successful in an unfair dismissal proceeding (T 6.23-37). The appellant expressed her desire to continue working the real estate industry and gave evidence of the possibility of an upcoming job offer (T 6.41-7.7).
27. The appellant further noted she is working casually to pay her mortgage but is behind on strata fees (T 7.25-26 17.7.19). She was not working during the recent period of caring for her terminally ill grandfather (T 7.22-26).
28. On 25 October 2019, the appellant briefly gave further evidence before me. The appellant gave evidence that she had not pursued job opportunities as she did not wish to “let them down” should her real estate licence be taken from her (T 8.7). The appellant indicated she was undertaking a course to renew her licence.
Psychological treatment report
29. On 25 October 2019, the appellant tendered a psychological treatment report under the hand of Ms Felicity Riddle, clinical psychologist, dated 30 September 2019 as noted above.
30. The report notes the appellant has been attending regular appointments with Ms Riddle over the preceding two months and that the appellant has been engaging with Directions on a regular basis to address substance abuse. Ms Riddle has discussed with the appellant ongoing regular treatment.
31. Ms Riddle indicates that she has been involved in the appellant’s care for a number of years and is aware of diagnoses of Major Depressive Disorder, Bipolar Affective Disorder, Borderline Personality Disorder, Complex Post-Traumatic Stress Disorder (PTSD) and anxiety. Ms Riddle’s opinion is that the diagnosis which best accounts for the appellant’s behaviour is PTSD.
32. Ms Riddle notes that the appellant “has a tendency to function much better when her employment and living situation is stable” and concludes:
[The appellant] has a number of strengths and protective factors that can assist her in maintaining stability, abstaining from substances, and not engaging in other maladaptive behaviour. [The appellant] has expressed a desire to maintain employment in the property industry, is future focussed and appears motivated to maintain the positive gains she has been able to make in her adult life. If she maintains her employment, has a stable living situation, engages in regular therapy and abstains from substances, [the appellant] is much more likely not to come to the further attention of the police or the courts.
Use of the evidence on appeal
33.
The respondent identified two approaches to the use of the evidence once admitted.
Under the R vEliasen (1991) 53 A Crim R 391 (Eliasen) approach the respondent submits, even in the absence of error, the appellate court can substitute the decision based on the material before them: Eliasen; Fallon v Baker [2018] ACTSC 319 at [18]
(Fallon), Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 (Grooms); Saga. Under the alternative approach, the Allesch v Maunz [2000] HCA 40; 203 CLR 172 (Allesch) approach, upon the evidence before the Court (including the additional evidence) a legal, factual or discretionary error is required to substitute the sentence: citing Lukatela v Birch [2008] ACTSC 99 (Lukatela); 164 ACTR 24 at [18]-[19], Ruhen at [30]-[31].
34. The second approach outlined by the respondent is a reference to the limitations imposed by an ‘appeal by rehearing’. The taxonomy of appeals was discussed by the High Court in Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [57]:
Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are:
1. Appeal in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.
2. Appeal de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.
3. Appeal by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance.
35. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Gageler J at [30]-[31] described an appeal by rehearing in the following terms:
Like an appeal in the strict sense… an appeal by way of rehearing is a procedure for the correction of error… "[T]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal”.
…An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal.
36. By contrast, the appeal de novo is identifiable by the absence of a requirement of error: Allesch at [23].
37. That an appeal under Division 3.10.2 of the Magistrates Court Act is an appeal by way rehearing is supported by substantial authority: Moroney v Wojcicka [2003] ACTCA 15; 143 A Crim R 1 at [20]; Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 at [81]; Lukatela; Ruhen; Barron v Laverty [2019] ACTSC 198 at [6]; Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at [4]-[5]; Peverill v Crampton [2010] ACTSC 79 at [14]; Foulkes v Coles [2017] ACTSC 178. See also Beazley et al, Appeals and Appellate Courts in Australia and New Zealand (2014, LexisNexis Butterworths, 198).
38. The respondent acknowledged that there were two approaches regarding the effect of the admission of further evidence, that is, the Eliasen and the Allesch approaches. It was submitted that the Allesch approach should be preferred in proceedings by way of rehearing. The respondent accepted that Eliasen allows for appellate intervention in circumstances where a Judge’s sentencing discretion has not miscarried, but submitted that Saga (at [77]) “suggests a requirement to follow a stripped down version of House v The King (1936) 55 CLR 499” in the sense that it is not enough that the Appeal Court would have come to a different decision. It was submitted that the Allesch approach was preferable as it was “more compatible with the nature of these proceeding, being an appeal by way of rehearing”. It was submitted that the evidence which the appellant is seeking to put before this Court “does not demonstrate a factual, legal, or discretionary error”.
39. The Eliasen approach is set out more fully in R v Nguyen [2006] VSCA 184 (Nguyen) at [36] (as referred to in Saga at [75]):
It is common ground that this Court may, in limited circumstances - sometimes described as “rare and exceptional” - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.
40. The appellant submitted that the further evidence should be admitted under s 214(3)(a)(iii) given its importance, its significant probative value and the lack of prejudice to the respondent. With respect to the report of Ms Riddle, the appellant submitted that it was also able to be admitted under s 214(4) as it was not available at the time of sentence. However, the appellant placed principal reliance on s 214(3)(a)(iii).
41. The Eliasen approach has been adopted in a number of cases from this jurisdiction: Edwards v Marinus [2010] ACTSC 57, Saga v Reid [2010] ACTSC 59, Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1, Islam v Wasley [2014] ACTSC 127, Subasic v Williams [2018] ACTSC 207, and Fallon v Baker [2018] ACTSC 319.[1] In my view, consistent with these authorities the Eliasen approach is the correct approach in this case. The sentencing discretion is therefore reopened. The question is whether on all the material before the Court any different sentence should be substituted to avoid a miscarriage of justice. The Allesch approach is not the appropriate analysis in circumstances where further evidence has been admitted. The question of resentence now arises in this case. I will now consider the question whether on all the material now before the Court any different sentence should be substituted to avoid a miscarriage of justice.
The report of Felicity Riddle
[1] The statement in Saga at [77] is to be contrasted with the later discussion in Grooms at [47]-[52].
42. The respondent submitted that the report of Ms Riddle was new rather than fresh evidence. In particular, the respondent submitted that the sentencing magistrate was aware of the appellant suffered from bipolar affective disorder, borderline personality disorder associate with bipolar features, PTSD and impulse control disorder, as this was included in the summary letter of Dr George Guirguis provided to the court.
43. However, the extent of the information contained in that letter is a list of the above conditions and the notation “she suffers from the conditions noted below and has been on long-term psychotropic medication. I am aware that she has been bullied and harassed at work and her stress level has escalated requiring psychological counselling”.
44. No further detail of the conditions is provided in the letter of Dr Gurguis.
45. By contrast, the report of Ms Riddle includes the following additional information which provides relevant context to the information contained in the brief letter of Dr Gurguis:
(a)Ms Riddle details the symptoms of PTSD that the appellant suffers from and that she has adopted maladaptive and self-destructive coping behaviours with respect to recalling traumatic events;
(b)That Ms Riddle is additionally aware of diagnoses of Major Depressive Disorder and anxiety;
(c)That Ms Riddle attributes the appellant’s behavioural and functional disturbances “over her late adolescence and adult life” to PTSD, her traumatic experiences “contributed to an unstable sense of self emotional dysregulation, impaired ability to manage distress and impulsivity”;
(d)That the appellant is undergoing various psychological therapies to address her mental health issues; and
(e)That the appellant’s functioning improves when her employment and living situation are stable and if this is maintained she will be less likely to offend.
46. “True significance”, in the context of condition (ii) in Nguyen, can include the “extent and implications” of a condition of health: R v Ferrua (1919) 14 Cr App R 39; R v Smith (1987) 27 A Crim R 315.
47. In the proceedings below, the letter of Dr Gurguis was submitted by counsel for the appellant to give context to the appellant’s criminal history and subjective circumstances including drug use (T 2.29-45). It was submitted that the appellant’s mental condition was not relevant to her offending but relevant for the need of ongoing assistance (T 6.35). Indeed, the learned Magistrate commented that there was no expert report before the Court which articulated the detail of the medical conditions (T 6.39-40) and that it was not possible to relate the conditions to the offending (T 7.26, 36).
48. The further evidence throws significant new light on the facts existing at first instance. In light of this, it is not necessary to establish whether or not the sentence was vitiated by error, nor whether it was manifestly excessive. In accordance with the approach set out in Nguyen at [75] the sentencing discretion is reopened.
Manifest Excess
49. It is not necessary for the Court to deal with the appeal grounds in light of the findings above in relation to resentence. It is nevertheless useful to set out the submissions in relation to the manifest excess ground prior to dealing with the question of resentence.
Appellant’s submissions
50. The appellant submitted that recording a conviction for this offence was manifestly excessive, and a good behaviour order should have been made (with a non-conviction) under s 17 of the Sentencing Act. The appellant relied on the principles relevant to manifest excess are well established and restated by the ACT Court of Appeal in O’Brien v The Queen [2015] ACTCA 47 at [25] (O’Brien).
51. The appellant submitted that, by reference to the maximum penalty, the offence is at the lower level of criminal offending, and can be considered to be a “trivial” offence: Lumby v Cooper [2008] ACTSC 53, per Penfold J at [45] (Lumby).
52. In identifying particular aspects of the sentencing remarks to support this ground, the appellant submitted the Magistrate had wrongly taken into account dishonesty matters which were dismissed under the Mental Health (Forensic Provisions) Act 1990 (NSW). In particular, the appellant referred to the following statements: “…and she is always honest, again her record suggests that [there] have been occasions where she has not been” (referring to the written reference), “she has other matters that she has had in her past” and “it is something that calls for possibility specific...deterrence…they must be scrupulous in relation to their honesty”.
53. In addition, the appellant submitted that “undue consideration” was given to the protective element of the Agents Act and not properly balancing this consideration with the personal circumstances of the appellant as required by s 17 of the Sentencing Act: specifically, good character (as supported by the reference), modest antecedents, her health, employment and remorse.
54. The appellant relied on Mearns v Neil [2016] ACTSC 36 (Mearns), a matter concerning a conviction affecting future employment, in which Penfold J at [42] stated:
A manifest excess appeal ground does not require the identification of a specific sentencing error, but requires a finding, however expressed, that the outcome of the sentencing process is simply wrong.
Respondent’s submissions
55. The respondent noted that the principles of manifest excess are outlined in O’Brien. It was submitted by the respondent that the appellant bears a “heavy burden” in establishing this ground and that it is not sufficient that appellate court would have imposed a different sentence (Balthazaar v The Queen [2012] ACTCA 26 (Balthazaar)) and relevant factors need be identified from which such a conclusion can be drawn: PR v The Queen [2014] ACTCA 40.
56. In this respect, the respondent submitted such factors were:
(a)The recording of a conviction: It was submitted that the failure to record a conviction is an “exceptional” outcome (Proud v Sladic [2014] ACTCA 26) with the ordinary course being the recording of a conviction upon the finding of guilt (Balthazaar). In the present case it was submitted the evidence was insufficient to establish that “no reasonable magistrate could have declined to exercise the discretion in s 17 to not record a conviction”: citing R v Ang [2014] ACTCA 17.
(b)Maximum penalty: it was submitted that a classification of “relatively trivial” does not lead to an entitlement of a non-conviction order: Lumby.
(c)Objective seriousness: it was submitted there were several items and “it may be inferred the monetary value was not insignificant”.
(d)Personal circumstances: It was noted the appellant had a criminal history and that the evidence of mental health issues were not submitted as contributing to the commissioning of the offence but rather as background information. It was also noted that the appellant was not working at the time of the conviction (T 9.40).
Conclusion on manifest excess
57. The Magistrate at first instance did not have the benefit of the further evidence that has been admitted on appeal. While it is not necessary to decide the matter for the disposition of this appeal, on the evidence before the Magistrate, the Court would not be compelled to the conclusion that the sentence was manifestly excessive.
Resentence
58. The starting point in any resentencing exercise is to consider the facts. The facts have been discussed in detail above. It is necessary to exercise the sentencing discretion afresh taking into account the purposes of sentencing and the matters the Sentencing Act requires to be taken into account, including ss 33 and 17.
59. Section 17 of the Sentencing Act relevantly provides:
…
(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender’s character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
(4) The court may also consider anything else the court considers relevant.
…
60. In Atmore v Milner [2016] ACTSC 260 Refshauge ACJ stated at [103]:
Employment is a factor in rehabilitation and often can prevent further offending. The loss of a job can have devastating effects, including leading to homelessness. This does not mean that in an appropriate case a proper sentence should not have imposed where it will have this effect. There are consequences for breaching the criminal law, but where a proper sentence can be imposed that does not result by its terms in the loss of employment, the community is usually better served.
61. Rehabilitation is an important consideration. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
62. The appellant has given evidence before me on two occasions. I have formed the view on all the evidence before me, including the further evidence, that the appellant is at a crossroads and leniency at this stage of her life is appropriate. As stated in R v Osenkowski (1982) 30 SASR 212 at 212-213 by King CJ:
…There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case…
63. In sentencing afresh and taking into account the further evidence and the purposes of sentencing along with the relevant matters under the Sentencing Act it is appropriate to set aside the finding of guilt.
Orders
64. I make the following orders:
(a)The appeal is allowed.
(b)The conviction recorded by the learned Magistrate, but not the finding of guilt, is set aside.
(c)A non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) is substituted.
(d)The offender is to enter into a 12-month good behaviour order with the core conditions prescribed in s 86(1) of the Crimes (Sentencing Administration) Act 2005 (ACT).
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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