Manning v Police - [2015] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MANNING v POLICE
[2015] SASC 49
Judgment of The Honourable Justice Nicholson
27 March 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
On 11 March 2014, the appellant pleaded guilty to, and was convicted of, one count of serious criminal trespass in a place of residence contrary to section 170(1) of the Criminal Law Consolidation Act 1935 (SA) and one count of theft contrary to section 134 of that Act. On 5 March 2014, the appellant entered unsecured residential premises in Adelaide and stole a number of electrical items. Very soon after committing the offences, the appellant handed herself in to police and made full admissions.
The appellant was sentenced on 1 April 2014 to the one penalty for both offences of 12 months imprisonment. This was reduced from a starting point of 20 months on account of the appellant’s early guilty pleas. A non-parole period of three months was ordered. Both the head sentence and non-parole period were backdated to commence 5 March 2014, being the date the appellant was taken into custody. The appellant became eligible and applied for parole in June 2014 but was unsuccessful. The appellant filed an appeal against sentence in this Court on 3 December 2014, well out of time. On 11 December 2014, the appellant was granted bail by a Magistrate, pending the outcome of her appeal. However, the appellant was not released until 15 December 2015, following various representations made by her solicitor to the Parole Board, and that release was purportedly on parole as opposed to bail. On 26 December 2014, the appellant was apprehended for an alleged breach of her parole conditions and returned to custody. The appellant was again released from custody on 6 February 2015. The appellant maintains that she had an absolute entitlement to parole as early as June 2014 in accordance with section 66 of the Correctional Services Act 1982. Separate judicial review proceedings have been issued with a view to ventilating this complaint.
By the notice of appeal filed 3 December 2015, the appellant seeks to challenge the sentence imposed by the Magistrate. The appeal raises a number of grounds including: the sentence was manifestly excessive; the appellant has been subjected to double punishment by virtue of the Parole Board’s initial refusal of parole and various other Parole Board decisions; the Magistrate was not aware of mitigatory circumstances personal to the appellant and relevant to the offending itself; the Magistrate ought to have suspended the sentence of imprisonment; the Magistrate failed to have regard to the power to partially suspend the sentence of imprisonment pursuant to s38(2a) of the Sentencing Act; and the Magistrate erred in failing to give proper credit for the appellant’s assistance to the police.
Held: None of the grounds of appeal are made out.
(1) The time within which to file the notice of appeal is extended to 3 December 2014.
(2) The appeal is dismissed.
Criminal Law Consolidation Act 1935 s170, s134; Criminal Law (Sentencing) Act 1988 s10B, s18A, s19, s30, s38; Correctional Services Act 1982 s66; Mental Health Act 2009 (SA); Supreme Court Civil Rules 2006 r78, r79, r281, r295, referred to.
Gallo v Dawson (1990) 93 ALR 479; Collins v State of South Australia & Anor [2000] SASC 62; Burke v Garsden & Anor [1993] SASC 3865; Spurway v Police [2011] SASC 177; White v Webb [2012] SASC 4; Wittwer v Police [2004] SASC 226; R v Delphin [2001] SASC 203, (2001) 79 SASR 429; R v Lepore [2013] SASCFC 13; R v Kikidis [2012] SASCFC 3, (2012) 112 SASR 148; R v Dorning (1981) 27 SASR 481; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Morse (1979) 23 SASR 98; R v Smith (1987) 44 SASR 587; R v Alashkar; R v Zachariah Tayar [2007] VSCA 182, (2007) 17 VR 65; Neuhuber v Police [2011] SASC 241; Carusi v Police [2002] SASC 240; Wessling v Police [2004] SASC 51, (2004) 88 SASR 57; Millhouse v Police [2008] SASC 353; Rysz v Police [2011] SASC 167; Trotta v Police [2008] SASC 16; Hurst v Police [2014] SASC 52; R v Pahuja (No 2) (1989) 50 SASR 551; R v Nguyen [2002] SASC 341, (2002) 84 SASR 190; R v Wilson [2010] SASC 89, (2010) 106 SASR 502; R v Galgey [2010] SASC 134; R v Golding (1980) 24 SASR 161; R v Binder (1989) 42 A Crim R 221; RJT v R [2012] NSWCCA 280; (2012) 218 A Crim R 490; R v McIntee (1985) 38 SASR 432, considered.

MANNING v POLICE
[2015] SASC 49
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction and background

This is an appeal against sentence. The appellant was sentenced on 1 April 2014.[1] The notice of appeal was filed on 3 December 2014. As such, the appellant requires a substantial extension of the time within which an appeal must be filed as prescribed by the Rules.[2]
[1] Police v Manning, AMC-14-3323, Remarks on Penalty, 1 April 2014.
[2] Supreme Court Civil Rules 2006, rule 281.
This Court has a discretion to extend the time for commencing an appeal[3] which is available for the sole purpose of enabling the Court to do justice between the parties.[4] Ordinarily, in exercising this discretion a court will have regard to the length of the delay, the reason for it, whether there is an arguable case and the extent of any prejudice suffered by the respondent.[5] At the hearing of the appeal I heard submissions from both parties with respect to both the extension of time issue and the merits of the appeal.
[3]    Supreme Court Civil Rules 2006, rule 295(1)(a).
[4]    Gallo v Dawson (1990) 93 ALR 479 at 480.
[5]    Collins v State of South Australia & Anor [2000] SASC 62; Burke v Garsden & Anor [1993] SASC 3865; Spurway v Police [2011] SASC 177.
On 5 March 2014, the appellant committed the offences of serious criminal trespass in a place of residence contrary to section 170(1) of the Criminal Law Consolidation Act 1935 and theft, contrary to section 134 of that Act. She pleaded guilty to the offences on 11 March 2014, thus attracting the maximum potential discount for an early plea of guilty (40 per cent) provided for by section 10B of the Criminal Law (Sentencing) Act 1988. On 1 April 2014, the appellant was sentenced to 12 months imprisonment, reduced from a starting point of 20 months on account of the early plea with a non-parole period of three months both backdated to commence 5 March 2014, the day she was taken into custody.
The Magistrate also dealt with the appellant for a breach of bail which his Honour described as relatively minor in nature and with respect to which he entered a conviction without penalty. Also before the Magistrate was an application for the breach of a good behaviour bond, purportedly entered into in the Magistrates Court on 14 February 2014 (only three weeks or so prior to the offending of present interest) with reference to earlier committed dishonesty offences. However, through no fault of the appellant, the bond was not signed by her. In these circumstances, the Magistrate dismissed the application for the breach of bond.
The appellant was eligible for parole sometime in June of 2014. However, parole was refused and, as a consequence, the appellant continued to serve her sentence. On 11 December 2014, an application for bail pending resolution of the appeal was heard and allowed in the Magistrates Court. However, the appellant was not immediately released on bail. Correspondence was entered into between the appellant’s solicitor, the Parole Board and the prison authority which canvassed the question of whether the appellant was entitled to be released at all and, if so, whether on parole or in accordance with the grant of bail. She was ultimately released on 15 December 2014 purportedly, that is, as far as the Parole Board viewed the matter, on parole conditions but also, arguably, subject to bail conditions. However, on 26 December 2014, she was returned to custody upon execution of a Parole Board warrant on the basis of an asserted breach of the parole conditions.[6]
[6] Letter from Parole Board of South Australia to the Crown Solicitor’s Office 12 January 2015.
Following further representations from the appellant’s solicitor, the Parole Board revoked its previous order cancelling parole and the appellant was discharged from custody “insofar as all Parole Board orders or warrants are concerned with effect Friday 6 February 2015”.[7]
[7] Facsimile from Parole Board of South Australia to the appellant’s solicitor 5 February 2015.
The appellant’s head sentence was due to expire on 4 March 2015. In the event that the appeal against sentence were to be unsuccessful, the question is likely to arise as to whether or not the appellant should be considered as having continued to serve her sentence during the period 15 to 26 December 2014 when she was released, purportedly, on parole conditions rather than on bail.
It would appear that the Parole Board regards the appellant’s release from custody on 6 February 2015 to have been on bail and not on parole. However, I have not heard submissions on this and whether or not this is so, strictly, does not arise on this appeal. In the event the appeal against sentence were to be unsuccessful, any time out of custody solely (at least) on bail conditions will need to be made up.
In February 2015, the appellant also commenced proceedings in this Court for judicial review of various of the Parole Board decisions. However, an amended (second) statement of grounds for judicial review was filed on 4 March 2015. In the second statement of grounds, the appellant relies on just the one contention that the decision of the Parole Board on 30 October 2014, to refuse parole, was invalid and without power. The appellant asserts that, as of 4 June 2014, the date her non-parole period expired,[8] the appellant had an automatic right to parole in accordance with section 66 of the Correctional Services Act 1982 and that her continued detention thereafter was unlawful.[9]
[8] See the Parole Board letter to the Crown Solicitor’s Office, dated 12 January 2015.
[9] According to section 66(1), were it to apply to the appellant’s circumstances, parole should have been granted no later than 30 days after the day of expiration of the non-parole period, 4 June 2014.
On 6 March 2015, I called the judicial review file on and, after hearing from the parties,[10] gave directions reducing the time, otherwise available under the rules, for the Crown to file its response to the appellant’s second statement of grounds. I was concerned to have the argument (which is essentially one of statutory construction) heard and determined expeditiously. If the appeal were to be refused with the likelihood that the appellant would be returned to custody, I was concerned for the parties to know, as soon as practicable, whether or not the appellant had an absolute entitlement to parole.
[10] The responding party to this appeal is the Police represented by the Director of Public Prosecutions, whereas the defending party to the judicial review proceedings is the State represented by the Crown Solicitor.
However, more serious events appear to have overtaken these concerns. I raised these matters with all counsel at a joint directions hearing for both matters earlier this morning. It is now alleged, that on 17 March 2015 and whilst on bail, the appellant deliberately caused two fires inside a city residence in which four occupants were sleeping. She has been charged with arson and four counts of attempted murder. It is my understanding that, initially, the appellant was compulsorily detained, pursuant to the Mental Health Act 2009, in the forensic secure facility, James Nash House. However, at the directions hearing this morning I was advised by the appellant’s counsel that the appellant has been released from compulsory detention and is now held at the women’s prison on remand with respect to this latest alleged offending. No application for bail has been made and none is anticipated in the foreseeable future. These matters will take their course and are of no direct relevance to this appeal. Nevertheless, in the circumstances, I have decided to resolve the appeal as quickly as practicable notwithstanding the existence of the judicial review proceedings.
However, as far as the appeal is concerned, the question arises whether a litigation guardian should be appointed.[11] The issue, ultimately, is one for the Court. An action can continue without a litigation guardian unless substantial prejudice to the person with the disability is demonstrated.[12]
[11] Supreme Court Civil Rules 2006, rules 78 and 79.
[12] White v Webb [2012] SASC 4.
I heard submissions with respect to the appeal and reserved my judgment on 26 February 2015. The only aspect of the appeal that remained outstanding, once the potential need for a litigation guardian to be appointed became apparent to the Court, was the completion of my reasons and the delivery of judgment. The appellant has been represented by counsel throughout. Counsel submitted at the directions hearing this morning that a litigation guardian was not now called for. In the circumstances, I can see no prejudice to the appellant were I to proceed with delivery of judgment and reasons on the appeal. There was no objection to this course when I raised the matter with counsel for the parties at the directions hearing this morning. Accordingly, I have decided to finalise the appeal.
Circumstances of the offending
On 5 March 2014, the appellant entered unsecured residential premises in the city of Adelaide and stole a laptop computer, two speaker towers, a small screen television and five remote internet connections or USB dongles. The premises were unoccupied at the time because the resident was in hospital. The appellant has for a very long time suffered from a significant mental illness and has been a long standing drug addict. She gave the stolen items to her dealer for further drug acquisitions. The appellant then reflected on what she had done and, according to the Magistrate, became genuinely remorseful having realised that there was a very real victim of the offending. Later that same day, she voluntarily presented herself to the police, made full admissions and took the police to the premises from which she had stolen the goods and showed them what she had done.
Personal circumstances of the appellant
The appellant is indigenous, is 41 years old and has had a very difficult past, dominated by her longstanding and serious drug addiction. As the Magistrate acknowledged, the offending in question was “very much drug driven”. She went to her drug dealer to obtain drugs but the dealer was not prepared to extend credit. It was indicated that, if she could provide certain items, she would be supplied with drugs. The appellant stole the items in question and presented them to the drug dealer. She admitted being aware that the victim’s house in the city was unoccupied. The backdoor was unlocked and the appellant had entered the house on a number of occasions to steal.
The appellant has been a regular abuser, for many years, of alcohol and a range of illicit drugs, including cocaine. She was diagnosed with schizophrenia in 1999 and has received regular depot medication for this condition over a number of years. According to the author of a bail enquiry report, dated 7 March 2014, which was before the Magistrate, the appellant appeared, at that stage, to be compliant with her recommended treatment.
The appellant has struggled to retain stable accommodation mostly because of her behaviour and failure to comply with the requirements of various supportive accommodation providers. Notwithstanding substantial efforts by government and non-government agencies and an enormous amount of goodwill on the part of caseworkers, the appellant, with her multiple, quite severe, problems, remains a person whom it is extremely difficult, if not impossible, to accommodate and assist appropriately within the system. One of the appellant’s homelessness caseworkers, who has taken some time to obtain an understanding of how the appellant thinks and operates, has formed the view that the appellant, where she can, uses incarceration as a form of respite care when she is not coping and is without stable accommodation.
The appellant has a very significant criminal history and, notwithstanding that her circumstances engender enormous sympathy, she is a woman who is capable of causing great harm and distress to other members of the community through her repeated offending. However, it should be noted that her criminal record discloses minimal, if any, conduct involving violence. Her criminal record comprises, in the main, numerous public disorder offences, failures to comply with court orders, drug offences, offences involving breaking and entering and dishonesty based offences. She has spent many periods of time in prison and has had the benefit of many suspended prison sentences. As an indication of the scale of her offending, the offender history record dated 31 December 2014,[13] which spans the period 1992 until the date of the Magistrate’s sentence in this matter (1 April 2014) contains in excess of 70 separate date entries, the majority of which date entries refer to multiple offences.
[13] Exhibited to the affidavit of Abigail Rebecca Foulkes sworn 29 January 2015.
Principles applicable to an appeal against a sentence imposed in the Magistrates Court
The approach to be taken by this Court on an appeal against a sentence imposed by a Magistrate was summarised by White J in Wittwer v Police.[14]
The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or if it has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly: House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324 – 325 [3] – [4]; Naera v Police (1995) 184 LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 252 at 291; Ware v Betts (1987) 134 LSJS 212 at 216; Wessling v Police (2004) 88 SASR 47 at 60.
Contrary to the appellant’s submission, this Court does not, on an appeal against sentence, consider the matter de novo, substituting its view as to the appropriate penalty whenever that differs from that of the sentencing Magistrate. This Court interferes only when it is satisfied that the sentencing Magistrate has made some error. Different considerations apply, of course, to appeals against conviction and findings of guilt by a Magistrate.
[14] [2004] SASC 226 at [16]-[17].
The Magistrate’s sentence

The maximum penalty for a basic offence of serious criminal trespass in a place of residence is imprisonment for 15 years and the maximum penalty for a basic offence of theft is imprisonment for 10 years. However, the matter was dealt with in the Magistrates Court and the total maximum penalty that could have been imposed, given that more than one offence was concerned, is ten years imprisonment.[15]
[15] Criminal Law (Sentencing) Act 1988, subsection 19(3).
In R v Delphin[16] the Court of Criminal Appeal indicated that in the ordinary case of a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence should be in the order of 20-24 months where a plea of guilty is involved. In the case of a first offender, serious consideration might be given to suspension of such a sentence. Furthermore, where, consequent on the serious criminal trespass, another offence such as theft takes place that offence will, as here, ordinarily be charged separately and will attract an additional penalty. Proper regard must be had to the question of concurrency and any level of double counting must be avoided.
[16] [2001] SASC 203; (2001) 79 SASR 429 at [47].
Of course, many factors are to be taken into consideration when assessing the level of seriousness of a particular trespass offence and the level of seriousness of a particular theft offence.[17] In the present case, the premises were unsecured and it would seem that no damage was caused upon entry. The trespass offence in this case could be considered as very much towards the low end of the range of seriousness for such offences. As far as the theft is concerned, the offending was also towards the low end of the range of seriousness, although the quantity of property stolen was significant and of not insubstantial value.
[17] See the discussion in Delphin.
The Magistrate exercised the discretion under section 18A of the Sentencing Act and imposed the one penalty for both offences. His Honour started at imprisonment for 20 months before any discount for the plea of guilty. A starting point of 20 months, for the head sentence, was well within the range available to the Magistrate. The Magistrate then allowed the maximum discount (40 per cent) available for the appellant’s early plea and the circumstances relevant to that plea, resulting in a head sentence of 12 months imprisonment. A very low non-parole period of three months was set. The appellant was the antithesis of a first offender and the Magistrate refused to exercise the discretion to suspend the sentence.
I am not satisfied that the Magistrate erred in reaching any of these conclusions bearing in mind the evidentiary material before his Honour. The sentence imposed by the Magistrate was, on the information before him, merciful. His Honour was confronted with a difficult set of circumstances. The sentence, according to the relevant authorities, was towards the low end of the range available given: the nature of the offending; a need to protect the community from the repeated and somewhat relentless acts of dishonesty by the appellant; the appellant’s personal circumstances; and the appellant’s, undoubtedly, poor prospects with respect to future rehabilitation (bearing in mind her record to this point and her other intractable problems).
In addition to asserting error, the appellant relies on additional information it seeks to have characterised as fresh evidence. However, I am not satisfied that any of the information relied on, whether or not it is capable of being so characterised, probably would have had an important influence on the sentence as passed. Before turning to consider the various grounds of appeal raised by the appellant, the approach to be applied when “fresh evidence” is relied on should briefly be reviewed.
Fresh evidence principles
The appellant relies on nine grounds of appeal. Some grounds overlap. Some rely on evidence that was not before the Magistrate. A Court hearing a sentence appeal from a Magistrate has a discretion to receive fresh evidence, that is, evidence that either was not available or could not, with reasonable diligence, have been obtained for use at the initial hearing. The proper approach to the exercise of the discretion is well understood. In R v Lepore[18] the Full Court,[19] by reference to other authorities, explained the position thus:
[18] [2013] SASCFC 13 at [23]-[26].
[19] Sulan, Peek and Blue JJ.
Determining where the interests of justice lie in fresh evidence applications requires the weighing up of two broad considerations. The first is the public interest in the finality of litigation, which requires that all reasonable steps be taken to put all material evidence before the sentencing court. Weighed against this is the probability that the fresh material would have an important influence on the result of the case.[20]
[20] See R v Kikidis (2012) 112 SASR 148, [25], citing R v Dorning (1981) 27 SASR 481, 485.
In R v Dorning,[21] the Court provided guidance on the exercise of the discretion.[22] The following matters should be considered:[23]
[21] (1981) 27 SASR 481.
[22] See also R v Gilby [2012] SASCFC 94.
[23] (1981) 27 SASR 481, 485-486.
•    the Court should be satisfied that the evidence could not have been obtained with reasonable diligence for use at the trial;
•    the evidence should be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
•    the evidence should appear credible.
In R v Smith, King CJ said:[24]
The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.
In R v McIntee,[25] 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. I have no doubt that 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…
[24] (1987) 44 SASR 587, 588.
[25] (1985) 38 SASR 432, 435.
Ground one – the sentence was manifestly excessive
In essence, whether or not a sentence is manifestly excessive is to be determined by asking the question whether, upon the facts, the sentence imposed was unreasonable or plainly unjust. In Markarian v The Queen[26] Gleeson CJ, Gummow, Hayne and Callinan JJ said this:
As with other discretionary judgments, the enquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dickson, Evett and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described in an offender’s appeal, as “manifest excess”, or in a prosecution appeal as “manifest inadequacy”.
[26] [2005] HCA 25; (2005) 228 CLR 357 at [25] (citation omitted).
In order to determine whether a particular penalty is manifestly excessive, an appellate court must consider: the applicable maximum penalty; any applicable sentencing standard; the seriousness of the offences committed as compared with other offences of this type; and the personal circumstances of the offender.[27] I am satisfied that the Magistrate paid close attention to matters personal to the appellant, to the nature of the offending including its seriousness but as mitigated by the full and frank cooperation of the appellant, to the appellant’s prior criminal record and to the leniency that had been extended in the past by sentencing courts. For the reasons already discussed, the penalty imposed both as to head sentence and non-parole period was lenient in the circumstances. The failure to suspend was within the discretion and not unreasonable or plainly unjust. The complaint of “manifest excess” has not been made out. Even when the evidence said to be fresh and relied on by the appellant (discussed below) is taken into account, “manifest excess” is not made out.
Ground two – the appellant has been subject to double punishment by virtue of the Parole Board’s refusal of parole
Ground three – as a result of the Parole Board’s decision to release the appellant on parole on 15 December 2014 and her detention for alleged breaches of that parole from 26 December 2014 until 5 February 2015 the appellant should be re-sentenced
[27] R v Morse (1979) 23 SASR 98 at 99 per King CJ with whom White and Mohr JJ agreed).
I will deal with these two grounds together. The heartland of the appellant’s complaint here concerns the conduct of the Parole Board after the sentence was ordered, indeed after the three months non-parole period expired. The appellant complains of the Parole Board’s failure to order her release, at the end of the non-parole period, in accordance with her, asserted, absolute entitlement under section 66 of the Correctional Services Act 1982. The appellant also complains that, when the Parole Board did come to engage in a discretionary consideration of her application for Parole, by its decision of 30 October 2014 to refuse parole, the Parole Board’s discretion miscarried.
The appellant also complains about the decision of the Parole Board on 15 December 2014 to release her on parole rather than allow her to be released in accordance with the terms of bail granted by the Magistrates Court pending the hearing of this appeal.
In short, the complaint is to the effect that by way of various wrongful decisions by the Parole Board the appellant has spent a substantial period of time in custody, albeit serving her sentence, when she was entitled to be released into the community on parole conditions.
In my view, these are not matters than can properly form the subject of fresh evidence on a sentence appeal. King CJ in R v Smith[28] makes it clear that fresh evidence on an appeal against sentence serves the function of bringing before the Court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing officer or which serve to explain facts which were before the sentencing officer so as to put them in a new light. As King CJ expressly stated:
It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence... and fresh evidence is therefore not receivable to establish the occurrence of such events.
[28] (1987) 44 SASR 587 at 588.
The Magistrate can be taken to have passed sentence with the knowledge that at the end of the non-parole period, as set, the appellant’s liberty or otherwise would be determined by the provisions of the Correctional Services Act dealing with Parole entitlements and subject to the exercise of any discretionary decisions available to and made by the Parole Board. The conduct of the Parole Board complained of by the appellant does not, in the circumstances of this case, amount to fresh evidence.
The case relied on by the appellant in support of this ground of appeal, R v Alashkar; R v Zachariah Tayar,[29] is distinguishable. That case concerned, inter alia, a situation where subsequent decisions of the Parole Board had a knock-on effect with respect to the information base that had been before the sentencing Magistrate when considering the totality principle. The facts and the relevant legislation in that case were far removed from the present.
[29] [2007] VSCA 182; (2007) 17 VR 65.
A similar submission was considered by Gray J in Neuhuber v Police.[30] His Honour’s observations[31] are apposite.
The defendant sought to introduce fresh evidence setting out the defendant’s difficulties with the Parole Board alleging illegal and inappropriate conduct on the part of the Parole Board. Counsel for the police had no objection to the Court being aware of the relevant history, but objected to its receipt as fresh evidence. It was contended that to succeed on the sentence appeal it was necessary to show that the Magistrate’s discretion in some way miscarried. It was argued that there was no basis to assume that the Magistrate had misunderstood what may happen to the defendant following her serving the non-parole period of three months.
Counsel for the defendant referred to authorities suggesting that regard could be had by an appeal court to a refusal to grant parole as fresh evidence relevant to the court’s consideration of a sentence appeal. Counsel referred in particular to a Victorian decision of R v Alashkar; R v Tayar,[32] however that decision does not assist. Under the Victorian legislation, the issue of parole was always a matter of discretion.
I do not consider that the defendant has established that there is a relevant matter to sentencing that was overlooked by the Magistrate. Having regard to the circumstances of the offending and the defendant’s appalling record, the Magistrate on any view imposed a very merciful sentence. There was no complaint about the sentence until the defendant’s concerns about release on Parole arose. To my mind, that is the defendant’s real complaint. Judicial review proceedings have been available to address that complaint. Those proceedings were not issued until 21 November 2011. The defendant’s complaints about the Parole Board can be addressed through those proceedings. If there is any substance to those complaints the Court can consider the appropriate relief.
[30] [2011] SASC 241.
[31] At [31]-[33].
[32] R v Alashkar; R v Tayar [2007] VSCA 182; (2007) 17 VR 65.
There is no substance to appeal grounds two and three.
Ground four – the learned Magistrate was not aware of matters concerning the personal circumstances of the appellant which were mitigatory and which are to be the subject of fresh evidence
I will deal with this ground in the context of grounds seven, eight and nine.
Ground five – the learned Magistrate failed to suspend the sentence of imprisonment
Ground six – the learned Magistrate failed to have any regard to section 38(2a) of the Sentencing Act
I will deal with these two grounds together. Given the nature of the offending, the prior criminal record of the appellant and her personal circumstances, including what can be inferred therefrom as to her prospects for future rehabilitation, and whether or not the “fresh” evidence relied on by the appellant (see below) were to be taken into account, the Magistrate’s decision not to suspend the whole of the term of imprisonment, pursuant to subsection 38(1) of the Sentencing Act, was well within the available discretion.
Related to this fundamental complaint is the appellant’s contention that the Magistrate failed to have regard to the discretion to partially suspend provided for by subsection 38(2a) of the Sentencing Act. That subsection, as it stood at the time of sentencing, provided:
(2a)[I]f the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order –
(a) direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b) suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.
The appellant contends that the Magistrate’s failure to have regard to and to invoke subsection 38(2a) was an error. Had the Magistrate considered the discretion available under subsection 38(2a) his Honour could have and should have, in the circumstances, ordered a short period of imprisonment, perhaps the three months that were in fact ordered by way of a non-parole period, and then suspended the balance of the prison term upon the appellant entering into a bond to be of good behaviour. This approach would have avoided the risk, and as it turns out the eventuality, of the Parole Board refusing to release the appellant on parole at the expiration of the three month non-parole period.
There is no doubt that it can be and often will be a sentencing error to fail to give consideration to subsection 38(2a) in a case where it is available to be applied.[33] All of the cases referred to in the previous footnote concerned sentences of more than three months and less than one year. However, an immediate difficulty with the appellant’s submission is that, if regard is had solely to the terms of the sentence as passed, subsection 38(2a) simply cannot be applied. The discretion under that subsection will only arise in a case where a period of imprisonment of more than three months but less than one year has been ordered. To overcome this difficulty, the appellant referred to another choice or discretion available to the Magistrate.
[33] Carusi v Police [2002] SASC 240 (Gray J); Wessling v Police [2004] SASC 51, (2004) 88 SASR 57 (Besanko J); Millhouse v Police [2008] SASC 353 (Kourakis J); Rysz v Police [2011] SASC 167 (White J).
The appellant was sentenced on 1 April 2014, having been taken into custody on remand for the offending on 5 March 2014. In these circumstances, subsection 30(2) of the Sentencing Act allows a sentencing officer a discretion. In short, such time spent in custody prior to the date of sentencing may be allowed for and ordinarily will be,[34] either by an appropriate reduction in both the head sentence and any non-parole period imposed or, without allowing any reduction, by directing that the head sentence and non-parole period are to be taken to have commenced on a date earlier than the day of sentencing, typically, the date the defendant was taken into custody.
[34] Trotta v Police [2008] SASC 16 at [18] (David J).
The Magistrate could have taken account of the 27 days spent in custody prior to the date of sentencing by ordering that the appellant serve a sentence of 11 months and four days from the date of sentencing rather than a sentence of 12 months backdated. If the Magistrate had done this, the discretion available under subsection 38(2a) may[35] have arisen.
[35] There may still be a debate whether “the period of imprisonment to which [the appellant] is liable” is 12 months in either case. If so, the discretion to partially suspend still would not arise because the sentence would fall outside the parameters of subsection 38(2a).
The real complaint by the appellant is not that the Magistrate failed to exercise the discretion available under subsection 38(2a). Rather, his Honour failed to exercise the discretion to allow credit rather than to backdate as permitted by subsection 30(2) so as to render available (arguably) the discretion under subsection 38(2a), and failed to go on and so exercise that discretion.
I have been unable to find any authority dealing with the discretion available under subsection 30(2) in this context. The authorities dealing with subsection 30(2) are clear to the effect that, in most cases, it will be preferable to backdate rather than reduce for time served and for good reasons of policy.[36] This is what the Magistrate did. In addition, although in a different context, David J observed in Hurst v Police:[37]
It [is] incumbent on [a sentencing] Magistrate to consider the question of the length of the sentence quite independently of any questions of suspension.
As a matter of principle, I agree with David J’s observation. However, in the present case it would seem that the Magistrate did finally determine the head sentence of 12 months before proceeding to consider the question of suspension. If so, it would not have been an error for his Honour to have then considered adjusting the head sentence in a way that allowed for subsection 38(2) to apply.[38]
[36] See for example, R v Pahuja (No 2) (1989) 50 SASR 551; R v Nguyen [2002] SASC 341, (2002) 84 SASR 190; R v Wilson [2010] SASC 89, (2010) 106 SASR 502; R v Galgey [2010] SASC 134. Sometimes this may not be practicable such as, for example, where separate periods of time have been spent in custody on remand prior to the sentencing date.
[37] [2014] SASC 52 at [15] (emphasis supplied).
[38] On the assumption for present purposes that it would apply through this means, see fn 35.

However, and in any event, there is no reason to think that the Magistrate was not aware of the available sentencing options. On the information before his Honour, it was within his discretion to proceed by way of a sentence of 12 months with a non-parole period of three months backdated. It also would have been within his discretion to proceed in the way the appellant now advocates. But it cannot be said that he was in error in choosing one approach rather than the other. No basis has been established by the appellant for a finding that the Magistrate took into account irrelevant considerations or failed to take into account relevant considerations so as to err when exercising the discretion available pursuant to subsection 30(2), in the way he did.
With hindsight, I can understand that the appellant would now prefer to have been ordered to serve a short term of imprisonment followed by release subject to a bond to be of good behaviour. This does not mean that the Magistrate erred in not adopting that approach. There is no substance to grounds five and six.
Ground four – the learned Magistrate was not aware of matters concerning the personal circumstances of the appellant which were mitigatory and which are to be the subject of fresh evidence
Ground seven – the learned Magistrate was not aware of other mitigatory matters including that property had been recovered the subject of the serious criminal trespass and theft offences and that the appellant had identified to police the person who had instigated her offending and the location of the property
Ground eight – the learned Magistrate erred in failing to give a sentencing discount in respect of the appellant’s assistance to authorities
Ground nine – alternatively, the learned Magistrate erred in his approach to give credit for such assistance
I will deal with these four grounds together.
The appellant relies on the fact that she had been a victim of sexual assault on at least two previous occasions, that she had reported these matters to the police, and that they did not feature in the bail enquiry report that was before the Magistrate and were not otherwise drawn to the Magistrate’s attention. An affidavit by Rosemary Denny, counsel for the appellant at the hearing before the Magistrate, sworn 25 February 2015, was read by the appellant, on the appeal, without objection by the respondent. The respondent was content for the Court to be made aware of the information but reserved its right to make submissions as to whether the information in the affidavit should be treated as fresh evidence and if so, as to the weight, if any, it should be given.
In that affidavit, Ms Denny deposed to the fact that she was aware that the appellant had been a victim of sexual assault in the past but could not recall what information in this respect, if any, was provided to the Magistrates Court. The appellant did not raise the matter with Ms Denny when giving instructions; Ms Denny’s awareness arose from an old pre-sentence report that had been made available to her.
The Court received two police apprehension reports as relevant to this ground. One recorded a report made by the appellant to the police on 28 November 2007 that she had been raped two weeks prior by a male known to her. The circumstances of the rape, described by the appellant and as recorded in the police incident report, involved violence and potentially the commission of other offences. The police incident report records that “no further action” was taken. However, there is no evidence before the Court as to why this was so.
According to a second police incident report, the appellant complained to the police on 23 July 2013 of sexual assault and a physical assault (punch to the head) by another male said to have occurred in March 2013. The sexual assault on this occasion involved a series of indecent assaults. The reporting person is recorded not as the appellant but as a member of the counselling staff at the Northfield Women’s Prison. Nevertheless, I will treat it for present purposes as a complaint made to the police by the appellant. In this report, the words “filed after investigation” are recorded against the heading “clear up status”. Again, there is no evidence before the Court as to what investigations were undertaken and what, if anything, resulted from this complaint.
The appellant contends that the Magistrate was not aware of these matters and this is conceded by the respondent.
The appellant maintains that the evidence of prior sexual assault should be seen as contributing further to the appellant’s very difficult personal circumstances and that, if it had been before the Magistrate, it would have assisted his Honour with respect to the issue of leniency generally. However, I agree with the respondent’s submission that it is not likely that, the fact that the appellant had been the victim on more than one occasion of prior sexual assault, would have added significantly to the Magistrate’s appreciation of her personal circumstances. His Honour already had an abundance of information before him that enabled him to characterise her as having had a very difficult past which included long term drug addiction and mental health issues. I am not satisfied that the Magistrate would have been any more lenient than he already had been.
The appellant also submits that the evidence of prior sexual assault would have been relevant to the question of the appellant’s cooperation with the authorities, in the sense of assisting the authorities with respect to the identification and investigation of criminal activity by other persons. In this respect, the appellant submits that she should be considered as having fulfilled the role of an informer[39] so as to be entitled to a further sentence discount over and above the 40 per cent discount for the plea of guilty, given in accordance with section 10B of the Sentencing Act.
[39] R v Golding (1980) 24 SASR 161; R v Smith (1987) 136 LSJS 173; R v Binder (1989) 42 A Crim R 221.
There is authority in New South Wales to the effect that, under its legislative regime, a discount can be given for cooperation, as an informer, with respect to an offence where the accused was the victim.[40] I am not aware that the position in this State has yet been determined. However, and without deciding the point, as a matter of principle it is difficult to see why the victim of an offence should necessarily be precluded from also being regarded as an informer for this purpose.
[40] RJT v R [2012] NSWCCA 280; (2012) 218 A Crim R 490.
Strictly, the evidence relied on does not pass the test for fresh evidence. It was readily available at the time of sentencing and could have been put before the Magistrate. However, at least where a sentence appeal is concerned, such a finding is not necessarily fatal to a fresh evidence application, as the extract from the judgment of King CJ in R v McIntee,[41] set out earlier in these reasons, demonstrates. However, ordinarily, the extent to which credit might be given in this area is entirely discretionary. In this case, there is no evidence to suggest that the information provided by the appellant was of any particular assistance to the police.
[41] (1985) 38 SASR 432 at [435].
For the evidence to be admitted as fresh evidence, the Court needs to be satisfied that it is probable that the fresh material would have had an important influence on the result of the case; in this case, the Magistrate’s sentence.[42] Given the circumstances of this matter and, in particular, the already lenient nature of the sentence and the substantial discount provided (albeit in accordance with the requirements of the legislation) for the plea of guilty and cooperation with respect to the offending generally, I am not satisfied that the Magistrate would have considered a further discount, on the basis of being an informer, to have been merited.
[42] R v Kikidis [2012] SASCFC 3; (2012) 112 SASR 148 at [25].
In addition to her cooperation concerning the prior sexual assaults, the appellant relies on a series of matters that the respondent agrees were not before the Magistrate.
(i)When the appellant attended at the Adelaide Police Station on 5 March 2014 she told police the name of her drug dealer.
(iii)[43] When the appellant attended at the Adelaide Police Station on that date she gave police an item she had stolen but not yet swapped for drugs.
(iv)Those items were five USB internet connections (also referred to as “dongles”).
(v)The items were able to be returned by police to their owner.
(vi)The appellant assisted police by taking them to the premises she had broken into. She was fully cooperative with that process. Whilst there she told police that a nearby unit (“number 68”) was where she had taken the stolen goods to her dealer.
(vii)Whilst that was not the residence of the main drug dealer it was an address that was known and of interest to the police.
(viii)The fact drugs were being sold from “unit 68” was not new information to police but confirmatory of that intelligence.
[43] Agreed fact 2 was “the effect of what the appellant said to police was that she had swapped the goods she had stolen for drugs”. However, it was accepted by the appellant that this agreed fact was a matter that was before the Magistrate.
I agree with the respondent’s submission that, notwithstanding that these particular matters were not before the Magistrate, he nevertheless reached a sufficient appreciation of the level of the appellant’s cooperation with the police at the time he imposed sentence. By reference to the sentencing remarks, it can be seen that the Magistrate had regard to the following:
(i)that the appellant voluntarily attended at the police station;
(ii)that she made full and frank admissions with respect to breaking into the premises and stealing the electrical equipment;
(iii)that she took the police to the premises in question and showed them what had occurred;
(iv)that she had swapped some of the items for drugs.
There is no evidence before the Court that would support a finding that the information provided by the appellant with respect to her drug dealer has assisted the police.
It is true that in addition to the general cooperation provided with respect to her own offending the appellant provided “intelligence” to the police concerning the alleged perpetrators of prior sexual offending against her and concerning her drug supplier. However, all of the material now relied on could have been put before the Magistrate at the time of the initial submissions; it was available or could, with reasonable diligence, have been made available.
In any event, I again agree with the respondent’s submission that none of this proposed fresh evidence is likely to have had a significant influence on the overall sentence in light of the information that the Magistrate already had and in light of the sentence as, in fact, passed. The Magistrate sentenced the appellant on the basis that she had cooperated fully with police and he allowed the maximum 40 per cent discount available under the legislation with respect to a plea of guilty and its surrounding circumstances. A further specific discount in addition to that available under section 10B of the Sentencing Act would not have been warranted in the circumstances of this case.
Furthermore, in terms of the starting point for the head sentence and the non-parole period set and whilst the question of leniency remains at large, I am not satisfied that in this case the Magistrate would have been any more lenient than he already was if in possession of the agreed facts and the information concerning the reported previous sexual assault of the appellant.
The items of “fresh” evidence relied on by the appellant, whether considered in isolation or in combination, are insufficient to make out any of grounds four, seven, eight or nine. As the new evidence sought to be relied on would not, in my view, have had any appreciable effect on the sentence, as passed, I refuse to admit it.
Conclusion
None of the grounds of appeal have been made out. I make the following orders.
(1)The time within which to file the notice of appeal is extended to 5 December 2014.
(2)The appeal is dismissed.
I will hear the parties with respect to any consequential matters.