Molin v The Queen
[2000] WASCA 223
•11 AUGUST 2000
MOLIN -v- THE QUEEN [2000] WASCA 223
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 223 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:101/2000 | 11 AUGUST 2000 | |
| Coram: | IPP J HEENAN J MILLER J | 11/08/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | JAMIE ROBERT STANLEY MOLIN THE QUEEN |
Catchwords: | Criminal law and procedure Sentence appeal Whether psychological report should be admitted as fresh evidence on appeal Whether exceptional circumstances exist Turns on own facts |
Legislation: | Nil |
Case References: | Gavin v R (1991) 6 WAR 195 Neal v R (1982) 56 ALJR 848 Anderson (1997) 92 A Crim R 348 Miles v R (1997) 17 WAR 518 Pratt v R [2000] WASCA 110 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MOLIN -v- THE QUEEN [2000] WASCA 223 CORAM : IPP J
- HEENAN J
MILLER J
- CCA 102 of 2000
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentence appeal - Whether psychological report should be admitted as fresh evidence on appeal - Whether exceptional circumstances exist - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Applicant : Mr B R Jackson
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gavin v R (1991) 6 WAR 195
Neal v R (1982) 56 ALJR 848
Case(s) also cited:
Anderson (1997) 92 A Crim R 348
Miles v R (1997) 17 WAR 518
Pratt v R [2000] WASCA 110
(Page 3)
1 IPP J: This is an application for leave to appeal against sentence. The applicant was sentenced to 6 years' imprisonment on one count of armed robbery in company. He was declared to be eligible for parole. It is contended that this sentence was manifestly excessive.
2 In support of the application the applicant relies on evidence said to be fresh. Before that material can be considered, of course, leave has to be granted to admit that evidence. The evidence in question is that of a psychologist who examined the applicant after the sentencing process had been completed.
3 It is apparent from the psychologist's report and from an articulate letter (written by the applicant to the Court), which also forms in effect part of the fresh evidence, that the applicant has had a tragic life. He has had serious sexual assaults perpetrated upon him since the age of 8. These assaults were performed by an employer. They continued for several years and they led to serious problems that the applicant experienced during childhood.
4 These matters meant that his childhood was extremely unhappy. He lived a lonely and disturbed life. It is apparent from the psychologist's report that this upbringing negatively affected the applicant's psychological development and caused him to suffer from depression, anxiety and other problems.
5 The psychologist's report asserts that these problems preceded and contributed to the applicant's decision to commit the armed robbery of which he was convicted and which gave rise to the sentence against which the appeal is sought to be made.
6 This sad history, however, does not of itself establish the requirements necessary for the admission of the evidence sought to be tendered. The rule is that the Court will only receive additional evidence in appeals against sentence in exceptional circumstances or in the exercise of the sentencing discretion afresh once it has been shown by other evidence to have miscarried: Gavin v R(1991) 6 WAR 195.
7 There is no suggestion that the learned sentencing Judge erred in imposing the sentence he did on the materials before him. Accordingly, the ground on which it is contended that this evidence should now be admitted is that exceptional circumstances exist.
8 In considering whether exceptional circumstances have been established it is relevant to observe that at the sentencing process the
(Page 4)
- applicant was represented by experienced counsel who made no attempt to obtain an adjournment to enable a psychological report to be obtained and, although the applicant personally raised the question of a pre-sentence report, counsel did not think it necessary to make a formal request of his Honour to obtain such a report.
9 After the sentence was imposed new lawyers were retained to represent the applicant and the inference to be drawn and accepted by counsel now representing the applicant is that it was at the instance of the new lawyers for the first time that a psychologist was asked to interview and examine the applicant with a view to obtaining fresh evidence.
10 In those circumstances, it seems to me, exceptional circumstances could only be established if the fresh evidence is of particular significance to the determination of a proper sentence. It therefore is necessary to examine carefully whether the matters contained in the sentencing report are capable of bearing significantly upon the sentence of 6 years' imprisonment.
11 The main point initially urged by counsel for the applicant was that the personality problems of the applicant contributed to the applicant's decision to become involved in the robbery. This is indeed the opinion expressed in the psychologist's report. A careful examination, however, of the report indicates that there is no rational foundation for such a view. According to the psychologist, the prior history of the applicant caused his depression, anxiety and other problems. He states:
"Persons of that kind would not normally be associated with the type who would engage in or initiate an armed robbery."
12 In other words, he is saying, as I understand the report, that a person with the personality of the applicant would not ordinarily commit an armed robbery. Hence, it cannot be said, following that reasoning, in my opinion, that his personality problems contributed to the robbery.
13 It is true that the psychologist goes on to say:
14 "The applicant is an insecure type of person who would go along with others because he lacks confidence in his own abilities and judgment."
15 This, however, seems to be contrary to the applicant's own participation in the offence which involved carrying the replica pistol which was used to commit the offence. In any event, even were that not
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- to be the case, then the mere susceptibility to be influenced by others would hardly be regarded as being of major mitigatory effect at this stage of the proceedings.
16 Counsel has also referred to Neal v R (1982) 56 ALJR 848 where reference was made to the mitigatory effect of emotional stress. There is no suggestion in the psychologist's report that at the time the offence was committed the applicant was suffering from the same kind of emotional stress as that from which the appellant suffered in Neal v R. In my opinion, the facts in Neal v R are far removed from those in the present case. The remarks made by the High Court in Neal v R concerning emotional stress are not applicable to the kind of personality problems from which the applicant suffered in this case.
17 I accept that the problems described in the report would have been of some relevance, particularly as background in the sentencing process. However, in my opinion, in the overall context of sentencing they would have had little effect on the sentence.
18 In my opinion, therefore, exceptional circumstances are not established and I would dismiss the application to admit fresh evidence and I would dismiss the application for leave to appeal against sentence.
19 HEENAN J: I agree with his Honour's conclusion and with the reasons which he has expressed, and I have nothing further to offer.
20 MILLER J: I agree for the reasons given by Ipp J that the application should be dismissed.
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