Mengersen v Police - [2016] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MENGERSEN v POLICE
[2016] SASC 12
Judgment of The Honourable Justice Vanstone
15 February 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
Application for extension of time within which to appeal against sentence - applicant pleaded guilty to a number of dishonesty offences in the Magistrates Court and received a sentence of two years and six months' imprisonment with a non-parole period of one year and eight months - whether fresh evidence as to deterioration in health of the applicant's partner should be admitted - whether the fresh evidence justifies alteration to the sentence.
Held: The application for an extension of time within which to appeal is granted, but the appeal is dismissed. The evidence is admitted as fresh evidence, however, there is no capacity to further reduce the sentence.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Dorning (1981) 27 SASR 481; R v Smith (1987) 44 SASR 587; R v Wirth (1976) 14 SASR 291, applied.
The Queen v Amuso (1987) 138 LSJS 53; Neill v Police [1999] SASC 270; R v D, RHC [2011] SASCFC 31; R v Kikidis (2012) 112 SASR 148; R v Penno [2004] SASC 354; R v Sladic (2005) 92 SASR 36; R v Stewart [2007] SASC 167, considered.

MENGERSEN v POLICE
[2016] SASC 12
Magistrates Appeal: Criminal

VANSTONE J: Peter Mengersen applies for an extension of time within which to appeal against a sentence imposed by a Magistrate for a number of dishonesty offences. The notice of appeal was filed almost three months out of time and no affidavit has been filed in support of the extension of time.
On 3 February 2015 the applicant pleaded guilty to seven counts of serious criminal trespass, nine counts of theft and one count of unlawful possession. The offences took place during the period September 2013 to June 2014 at various properties on the Yorke Peninsula. The maximum penalty for each offence of theft and serious criminal trespass is imprisonment for ten years, and for unlawful possession, imprisonment for two years.
On 6 May 2015, the Magistrate imposed a single sentence of imprisonment for two years and six months, with a non-parole period of one year and eight months. The Magistrate declined to suspend the sentence.
By notice of appeal filed on 5 August 2015 the applicant challenges the sentence. He contends it is manifestly excessive and that the Magistrate failed to have regard to mitigating circumstances and, in particular, the circumstances of the applicant’s dependants. He has placed before this Court material additional to that before the Magistrate relating to the condition of his partner.
Since 12 August 2015 the applicant has been on bail pending appeal. The appeal was heard on 19 January 2016.
Background
On 26 June 2015 the applicant and his father, John Mengersen, were jointly charged with three offences of serious criminal trespass and associated thefts at three separate properties, two of them being residences. They had stolen an assortment of household goods, electronics, outdoor equipment, fuel and alcohol. In one case the value of the items stolen exceeded $2500, but not by much. The applicant was also charged with three further counts of serious criminal trespass and corresponding thefts at different properties, all residential, and two separate thefts. In this run of offences it was alleged that the applicant had stolen household goods, tools, electrical items, outdoor equipment, cash, liquor and jewellery. The value of the goods taken from each property varied from about $75 to under $2500. In addition, there was a charge of unlawful possession, concerning tools, electrical items and fishing equipment found in the applicant’s possession, the sources of which could not be established.
On 4 September 2015 the applicant was further charged with serious criminal trespass and an associated theft. The property stolen was a motorised mountain bike having a value under $2500.
In sentencing, the Magistrate noted that the applicant was 34 years of age. At the time of the offences he had recently separated from his former partner, with whom he had three children. The children lived with their mother in Murray Bridge. The applicant had entered into a new relationship with a woman, Ms Hansford, who is a few years older than himself. The applicant had become the full-time carer of Ms Hansford, who has significant challenges in terms of health.
The Magistrate had the benefit of a report from a psychologist, Dr Jack White. Dr White expressed the view that the applicant suffered from an alcohol use disorder, a generalised anxiety disorder and post-traumatic stress disorder.
In sentencing, the Magistrate told the applicant that he was doing “the best he could” for him given the seriousness of the offending and the number of offences. The Magistrate utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed one sentence for all offences. His Honour took a starting point of three years and nine months’ imprisonment. By reason of the applicant’s co‑operation and guilty pleas, the Magistrate applied a discount of one-third. That left a head sentence of two years and six months. The non-parole period of one year and eight months amounted to two-thirds of the head sentence. The sentence commenced on the day it was imposed, 6 May 2015.
Arguments on appeal
Upon the appeal it was argued that the Court should receive fresh evidence relating to events befalling Ms Hansford subsequent to the applicant being sentenced. There were two affidavits from Ms Hansford herself. She avers that she is aged 41 years and in receipt of a disability support pension. She was left with a severe disability as a result of a swimming incident when she was 14 years of age. Ms Hansford said that she and the applicant formed a relationship towards the end of 2014 or the beginning of 2015. According to Ms Hansford, about two months into the relationship the applicant applied to become her carer. After the applicant was sentenced in early May 2015, Ms Hansford said she had a “spasm attack”. After investigation in hospital she was told that she had a prolapse of the spine, bulging discs and early arthritis. She says that she is unable to look after herself without support of the nature that the applicant provides.
The applicant tendered a report from Associate Professor Ruth Marshall, a consultant in rehabilitation medicine at the SA Spinal Cord Injury Service. Professor Marshall gave a history of Ms Hansford’s condition. She said that Ms Hansford recovered well after the original incident when she was 14, but was left with “a spastic gait”. The problems associated with her condition were described. The occurrence of spasms has been a hallmark of her deterioration over time and her spasticity has worsened. In relation to her current situation, Professor Marshall said that Ms Hansford’s level of dependency for personal care and domestic activities has increased markedly since the incident in May. The report continued:
She clearly has a continued pain focus making her spasm and spasticity much worse. Her bladder has also worsened. She is now dependent in most activities.
In her conclusion, Professor Marshall said that the function lost in the last six months would not be regained and that Ms Hansford would require considerable personal care and domestic assistance for the rest of her life.
Mr Armstrong, for the applicant, argues that the marked deterioration in Ms Hansford’s condition amounts to fresh evidence as, although Ms Hansford’s general condition was known to the Magistrate and was the subject of some evidence by way of a report before him, the incident which occurred in May and its sequelae could not have been anticipated. He submits that the sentence should be reduced in the face of the fresh material.
The respondent does not object to the new evidence being received, conceding that it amounts to fresh evidence as defined in the authorities.
Consideration
Fresh evidence of events occurring after sentence is admissible for the purpose of showing the true significance of facts that were in existence at the time of sentence: R v Smith (1987) 44 SASR 587, at 588 per King CJ. Generally, such evidence will not be received unless there is good reason why it was not previously presented, it is likely to have had an important influence on the disposition of the matter and it is apparently credible: R v Dorning (1981) 27 SASR 481, at 485-486.
It is only in exceptional cases that hardship to dependants will be taken into account in fixing sentence. In R v Wirth (1976) 14 SASR 291, the Full Court said that regard should be had to such hardship “where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so”: per Wells J at 296. Reference was made on appeal to a number of cases that have applied this principle.
Fresh evidence concerning an appellant’s children has been accepted by courts on a number of occasions. In Neill v Police [1999] SASC 270 Doyle CJ accepted fresh evidence about the death of the appellant’s partner and its impact on the care of the appellant’s children. He was sentenced to four years imprisonment with a non-parole period of two and a half years for six counts of breaking, entering and larceny. The Chief Justice reduced the appellant’s non‑parole period to one year and ten months. Evidence of the appellant’s partner’s deteriorating mental health and attempted suicides, precluding her from continuing to look after his children, was accepted in R v Penno [2004] SASC 354. The appellant had been sentenced to six years imprisonment with a non-parole period of three years for possessing methylamphetamine for sale. The Court reduced the appellant’s non-parole period to one year and nine months. Evidence of the change of circumstances of the appellant’s children – who were expected to live with their mother – was accepted in R v D, RHC [2011] SASCFC 31. The appellant’s sentence for historical sexual offences was reduced from imprisonment for nine years with a non-parole period of four years to seven years with a non-parole period of three years.
Fresh evidence that goes to the wellbeing of an offender’s partner has also been accepted, although cases are harder to find. In The Queen v Amuso (1987) 138 LSJS 53, the Court received evidence of the worsening of the appellant’s wife’s arthritis, a condition which was known to the sentencing Judge. Nevertheless, the Court of Criminal Appeal declined to alter the sentence of two years imprisonment with a non-parole period of 15 months for cultivating Indian Hemp. In R v Stewart [2007] SASC 167 Anderson J (Kelly J agreeing) admitted fresh evidence demonstrating the deterioration of the appellant’s partner’s lupus disease. The sentencing Judge had been generally aware of the condition and how it affected the partner’s everyday activities, but was not told of the potential for deterioration. However, the Court of Criminal Appeal held it did not provide reason to reduce the sentence. The evidence was classified as an elaboration of the material previously presented. The essential features of the condition were constant: Anderson J at [38]-[39].
There are cases where evidence of this kind has not been accepted. In R v Sladic (2005) 92 SASR 36 the appellant tendered evidence that indicated he was the sole breadwinner for his parents who relied on him for financial, emotional and physical support. The Court of Criminal Appeal declined to admit the evidence on the basis that all it did was reinforce factors already taken into account by the sentencing Judge.
In R v Kikidis (2012) 112 SASR 148 a report supporting the psychological distress of the appellant’s children since his sentence was not admitted because the condition of the children “reflect[ed] the materialisation of the anticipated effect on their welfare about which the judge was clearly concerned”: per Kourakis J at [28], Doyle CJ and Vanstone J agreeing.
The cases surveyed demonstrate that whether or not fresh evidence is to be received is very much a matter of judgment and degree and whether it is seen to justify alteration to the sentence under appeal is again a matter of judgment. In my view, the cases of Amuso and Stewart in particular support the concession made by Ms Borek for the respondent that the evidence should be admitted as fresh evidence. The question remains whether it should cause the Court to reduce the applicant’s sentence. Ms Borek suggests it should not.
I accept the respondent’s submission. There are several reasons for that. Probably the least of those is that the relationship between the applicant and Ms Hansford is not one of long-standing. It is not clearly demonstrated to me when the relationship commenced; but plainly this is not a case where, after many years, a spouse has deteriorated to an extent where she is not able to look after herself and the sentence will deprive her of the care of her long-standing partner.
A more substantial reason is that the Magistrate clearly had been apprised of the fact that deterioration in Ms Hansford’s condition was likely. Of course, the rate of deterioration was not known and that it should be precipitated by an accident could not have been anticipated. However, sad as it is, Ms Hansford’s condition will, according to Dr Marshall, worsen over time. At some point it seems likely that she will have to go into some sort of facility providing care. Perhaps the applicant’s assistance could delay that necessity, but that is unclear.
Of fundamental importance in this decision is the number and seriousness of the offences leading to the applicant’s sentence. They were committed quite relentlessly over many months. They show a preparedness to invade the homes and holiday homes of others and a complete disregard for the rights of fellow members of the community. Each offence of housebreaking is a serious one and carries a significant maximum penalty. In my opinion, the applicant was lucky that the sentence imposed was not much higher than that fixed by the Magistrate. Another magistrate might well have been persuaded to refer the matter to the District Court for sentence. In my opinion, only by giving the greatest weight to the applicant’s pleas of guilty, apparent contrition and the circumstances of his partner could the Magistrate have imposed such a merciful sentence. In these circumstances there is, in my view, no capacity to further reduce the sentence, even giving full weight to the fresh evidence. To do so would be to entirely undermine the proper purposes of punishment, which include giving effect to the policies of general and personal deterrence.
During the hearing, Mr Armstrong, who commenced acting for the applicant some months after the appeal notice was filed, sought a further adjournment for the purpose of obtaining a report from staff at Disability SA as to the nature of facilities available to Ms Hansford. I declined to grant such an adjournment, having regard to the fact that several adjournments had already been given for similar purposes. I make it plain that I have assumed that Ms Hansford’s condition is such that, without the applicant’s care, she may not be able to remain in her own home. Since she asserts that she has no real support available to her, apart from the applicant’s, that may well mean that she must go into care. Consequently, irrespective of what such a report might have revealed, it would not have altered my attitude to Mr Mengersen’s appeal.
I am prepared to receive the fresh evidence and to treat it as justifying an extension of time within which to appeal. I do so notwithstanding that the accident suffered by Ms Hansford apparently occurred in mid-May and the notice of appeal was not filed until 5 August 2015. However, for the reasons already given, the appeal would fail on the merits.
Conclusion
The application for an extension of time within which to appeal to 5 August 2015 is granted, but the appeal is dismissed.
The applicant must, therefore, return to custody to serve the balance of his sentence.