Manning v Police

Case [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…

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Details
AGLC
Manning v Police [2015] SASC 49
Case
[2015] SASC 49
Decision Date

CaseChat Overview and Summary

Manning v Police is a case where the appellant challenges the sentence imposed by the Magistrates Court of South Australia, appealing to the Supreme Court. The appellant argues that the sentence was excessive and that fresh evidence, which was not available at the time of the original sentencing, should be considered. The primary legal issues in this case include whether the sentence was manifestly excessive, if the fresh evidence could have influenced the sentence, and the proper approach to applying the fresh evidence principle in sentencing appeals.

The court must first consider the principles governing the admission of fresh evidence in sentencing appeals. It has been established that a court has a discretion to admit fresh evidence if it could not have been obtained with reasonable diligence at the time of the initial hearing. The court must weigh the public interest in the finality of litigation against the probability that the fresh evidence would have had an important influence on the outcome. The fresh evidence must be credible and relevant to the case at the time of the original sentencing. The court also noted that evidence of events occurring after the sentence cannot be considered.

The court analysed the appellant's grounds of appeal, including the assertion that the sentence was manifestly excessive and that fresh evidence could have influenced the sentence. The court concluded that the fresh evidence provided by the appellant was not credible or relevant to the time of the original sentencing. The court found that the fresh evidence would not have had an appreciable effect on the sentence as passed, and therefore, the appeal was dismissed. The court extended the time for filing the notice of appeal and dismissed the appeal against the sentence.

The final orders of the court included an extension of time to file the notice of appeal and a dismissal of the appeal against the sentence. The court also indicated that it would hear the parties regarding any consequential matters.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

NICHOLSON J
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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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