James William McEwan v Simon Vincent Rohan (No. 2)

[2013] ACTSC 54

JAMES WILLIAM MCEWAN v SIMON VINCENT ROHAN (No. 2)
 [2013] ACTSC 54 (22 March 2013)

CRIMINAL APPEAL – EVIDENCE – appeal from Magistrate – appellant convicted of making an intentional threat to kill – application to adduce fresh evidence on appeal ­­– s 214 Magistrates Court Act 1930 (ACT) – whether necessary or expedient to receive material in the interests of justice – evidence of hardship on children caused by appellant’s imprisonment ­– necessary and expedient to receive in the interests of justice – evidence of appellant’s experience of his Aboriginality – not necessary and expedient to receive in the interests of justice – application granted in part

CRIMINAL APPEAL – appeal from Magistrate – appellant sentenced for making an intentional threat to kill – appeal against sentence – sentence imposed at first instance was appropriate – fresh evidence of hardship upon appellant’s family changes appropriate disposition – appeal upheld & appellant resentenced

McEwan v Rohan [2012] ACTSC 181

Crimes Act 1900 (ACT) s 30
Crimes (Sentencing) Act 2005 (ACT)
Magistrates Court Act 1930 (ACT), s 214

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 79 of 2012

Judge: Burns J             
Supreme Court of the ACT

Date: 22 March 2013 

IN THE SUPREME COURT OF THE     )
  )          No. SCA 79 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          

JAMES WILLIAM MCEWAN
Appellant

v        

SIMON VINCENT ROHAN

Respondent

ORDER

Judge:Burns J

Date:22 March 2013

Place:Canberra

THE COURT ORDERS THAT:

1. The application to adduce fresh evidence is granted in part.

i.      The material relating to the hardship to his children occasioned by the appellant’s incarceration is allowed.

ii.      The material relating to the appellant’s experience of his Aboriginality as a child and as a young man is refused.

1. The appeal against sentence is upheld. 

i.      The conviction and sentence of 18 months’ imprisonment imposed by the Magistrate are confirmed. 

ii.      The balance of the sentence is suspended upon the appellant entering into a Good Behaviour Order.

1. On 17 September 2012, the appellant was convicted of an offence contrary to s 30 of the Crimes Act 1900 (ACT), alleging that on 26 December 2011 he made a threat to another person to kill that person, and intended that the person to whom the threat was made would fear that the threat would be carried out, and made that threat without lawful excuse and in circumstances in which a reasonable person would have feared that the threat would be carried out.

2. On conviction he was sentenced to 18 months’ imprisonment with a non-parole period of 12 months. 

3. The appellant appealed from both the conviction and sentence.  At the hearing of the appeal, in respect of the conviction imposed by the sentencing Magistrate on 19 October 2012, it was indicated that the appellant at that time was not in a position to pursue the appeal against sentence.  In addition to which, of course, if the appeal against conviction had been successful there would have been no requirement for him to pursue the appeal against sentence.

4. On 21 December last year, I dismissed the appeal against conviction and published my reasons (see McEwan v Rohan [2012] ACTSC 181). The appellant now pursues his appeal against sentence. As part of the appeal against sentence, he seeks to put further evidence before the court beyond that which was before the Magistrate when her Honour originally imposed the sentence.

APPLICATION TO ADDUCE FRESH EVIDENCE

1. Speaking very generally, the nature of the evidence which the appellant wishes to now put before this Court on the appeal in addition to the material which was before the Magistrate is evidence relating to hardship which has been occasioned to his children as a consequence of the sentence of imprisonment being imposed, and also evidence relating to his experience of his Aboriginality as he was developing from a child into a young man.

2. The parties agree that the question of the reception of this material is governed by s 214 of the Magistrates Court Act 1930 (ACT) (‘the Act’). The reception of further evidence on an appeal such as this may be permitted by subs 214(3) or subs 214(4). I will not, at the present time, set out in the course of these reasons the exact terms of those provisions. It is sufficient to note that the respondent to the appeal submits that the material cannot be received under subs 214(3) without the respondent’s consent, and that the material cannot be received under subs 214(4) because part of it is material which was available to be adduced in the proceedings before the Magistrate, and no reasonable explanation for the failure to adduce it has been provided, and also the remaining part, is material which is only relevant to circumstances which have arisen since he was sentenced.

3. In that regard, there is authority in this Court that such evidence - that is, evidence relating to circumstances which have arisen since the original sentencing - cannot be received under section 214(4) of the Act.

4. There is also authority, and indeed longstanding authority in this Court that the interpretation put forward by the respondent with respect to subs 214(3) is not correct. There are previous decisions by judges of this Court, including former Chief Justice Miles, to the effect that subs 214(3) provides a very broad discretion to this Court to receive evidence where the Court considers that it is necessary or expedient to do so in the interests of justice.

5. As was pointed out by the respondent, the decisions to which I have referred are decisions of single judges of this Court, and strictly speaking are not binding upon me.  However, it is clear that I should not depart from those decisions unless I am satisfied that they are clearly wrong. 

6. Not only am I not satisfied that they are clearly wrong, having given the matter some consideration, with respect, I consider them to be correct.

7. I accept the proposition which has been put forward by the respondent that the material cannot be received under subs 214(4).

8. However, I accept that it may be received under subs 214(3) if I consider it necessary or expedient to do so in the interests of justice.

9. I may say that, having read the submissions that were made to the Magistrate, that it is lamentable that more effort was not put into presenting appropriate material to the her Honour on sentencing.  In particular, it appears that very little information was put before the Magistrate about what would happen to the appellant’s five children were he to be sentenced to an immediate term of imprisonment. 

10. The question of the effect upon other family members of a person to be sentenced is something which a court is required to take into consideration under the provisions of the Crimes (Sentencing) Act 2005 (ACT). In my opinion, it is expedient in the interests of justice to receive the evidence relating to the hardship which has been occasioned to the appellant’s children by the sentence of imprisonment imposed by the Magistrate.

11. In saying that I consider that it is appropriate to receive that evidence on this occasion, I should not be taken as expressing a view that in all circumstances where appropriate material such as this is not put before a Magistrate at the time of sentencing, that this Court will necessarily allow fresh evidence on the appeal.  However, in the circumstances that exist in this particular case, I am going to receive the material relating to the hardship to the children occasioned by the appellant’s incarceration.

12. However, it appears to me that other considerations exist in relation to the second area of evidence which is sought to be led on this appeal by the appellant.  The material relating to the appellant’s experience of his Aboriginality as a child and as a young man does not appear to me to have the same cogency in terms of the sentencing process that was to be undertaken before the Magistrate as the material relating to the likely hardship to be occasioned to the children by any sentence of imprisonment.

13. There was some material which was put before the Magistrate with respect to the appellant’s Aboriginality and also his background.  I am not satisfied that it is either necessary or expedient to receive that material in the interests of justice. 

14. However, as I have said, I will receive the remaining material relating to the hardship to the appellant’s children in the course of this appeal, which of course has implications for the necessity to establish an error on the part of the Magistrate.

APPEAL AGAINST SENTENCE

1. I am satisfied that the sentence imposed by the Magistrate was an appropriate sentence.  Although the appellant had not offended for a significant period before he committed this offence, the fact is that this was a serious example of this type of offending, and the legislature has provided a maximum penalty of 10 years’ imprisonment for this offence.  A term of 18 months’ imprisonment, in my opinion, was a just and appropriate sentence.

2. However, now having before me the material relevant to the likely effect of a sentence of immediate imprisonment upon the appellant’s family, I am satisfied that the appropriate disposition with respect to the appeal is to suspend the balance of the sentence which was imposed by the Magistrate and place the appellant on a Good Behaviour Order for a significant period.

3. The appeal against sentence will be upheld.  The conviction and sentence of 18 months’ imprisonment imposed by the Magistrate will be confirmed.  That sentence will be backdated to commence on 13 January this year.  The balance of the sentence as of now will be suspended and there will be a Good Behaviour Order, self, in the sum of $1,000 to be of good behaviour for a period of two years from this date.

4. That order will have the following conditions:

   1. that the appellant is to accept the supervision of ACT Corrective Services and obey all reasonable directions of officers of that service;
   2. Secondly, the appellant is to undertake such counselling or treatment as directed by officers of ACT Corrective Services with respect to addressing alcohol abuse; 
   3. Thirdly, the appellant is not to consume alcohol during the period of the Good Behaviour Order; and
   4. Finally, the appellant is to be assessed for and, if found suitable, complete the ACT Corrective Services Family Violence Cognitive Self-Change Program.

5. Now, I am giving the appellant an opportunity not to serve the remainder of that sentence of imprisonment which was imposed by the Magistrate.  It was a very nasty offence, and it rightly deserved a period of imprisonment.

6. Now, were it not for the effect of the appellant’s imprisonment upon his young family, I think it likely that the appellant would have served a longer period of actual imprisonment.

7. Now, it is going to be up to the appellant.  If the appellant maintains his commitment to avoiding the use of alcohol, then based upon his history I have no doubt that he can also stay out of trouble.  If he does that, of course, then there’s no reason why the appellant should have to serve the remainder of the sentence of imprisonment which has been suspended.

8. On the other hand, if the appellant commits some further offence during the period of that Good Behaviour Order, or alternatively if he does not comply with the terms of the Good Behaviour Order, then the appellant should expect that he will have to serve the remainder of that sentence of imprisonment, and other arrangements will have to then be made with respect to his children.

   I certify that the preceding twenty six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:    3 April 2013

Counsel for the Applicant:  Mr A Hopkins

Solicitor for the Applicant:  Aboriginal Legal Service (NSW/ACT)

Counsel for the Respondent:  Mr T Jackson
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of Hearing:  22 March 2013
Date of Judgment:  22 March 2013