Phillipou v The Queen
[2020] SASCFC 21
•26 March 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
PHILLIPOU v THE QUEEN
[2020] SASCFC 21
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Doyle)
26 March 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Appeal against the sentence of a Judge of the District Court imposed on a conviction for trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The appellant pleaded guilty, after the matter had been listed for trial, to trafficking 3.11 grams of methylamphetamine seized from his residence. The methylamphetamine was located in the kitchen, together with $21,750 in cash, numerous mobile phones and other drug related paraphernalia. Prior to the police search of the house but on the same day, a woman had visited the appellant’s house. The appellant also alleged that his acquaintance, AV, had been in the house and that the money and methylamphetamine were AV’s. The woman was apprehended on the same day and found to be in possession of methylamphetamine.
The Judge, ruling on a disputed facts hearing, rejected the appellant’s story that AV brought the methylamphetamine to his house. The Judge also held that the methylamphetamine on the woman had been supplied by the appellant. The appellant was sentenced to 4 years and 5 months imprisonment and a non-parole period of 3 years 6 months and 2 weeks, which was four-fifths of the head sentence because the Judge sentenced the appellant as a serious repeat offender under s 53(1) of the Sentencing Act 2017 (SA) (the Sentencing Act).
The appellant appeals on four grounds:
1. That the Judge erred in sentencing the appellant against the background of a prior uncharged act of trafficking methylamphetamine to the woman (ground 1).
2. That the Judge infringed the De Simoni principle in that sentence was passed upon crimes for which the appellant was not charged (ground 1A).
3. That the Judge erred in sentencing the appellant as a serious repeat offender because those provisions do not apply retrospectively in that offences committed prior to the commencement of the current Sentencing Act are not qualifying offences (ground 2).
4. That the Judge erred in not reducing the sentence on account of the appellant’s guilty plea (ground 5).
After the Court reserved its decision, the appellant asked that the hearing be reopened for the purposes of receiving further evidence. The Court was provided further material, in relation to the appellant’s partner’s diagnosis of terminal cancer and the care of their son, without objection, to consider whether to admit it as further evidence on appeal. The appellant sought leave to argue two additional grounds of appeal that the sentence be set aside because of those changed circumstances. The appellant’s son was a matter referred to by the Judge in his sentencing remarks.
Held per Kourakis CJ (Stanley and Doyle JJ agreeing), dismissing the appeal on grounds 1, 1A and 5, and granting permission to appeal but dismissing the appeal on ground 2:
1. The finding that the woman obtained the methylamphetamine from the appellant was plainly correct.
2. The De Simoni principle was not breached by the Judge. There is no indication in the sentencing remarks that the Judge viewed the sale to the woman as an aggravating circumstance.
3. The Judge did not err in not reducing the sentence on account of the appellant’s guilty plea.
4. Section 52(1)(d)(vi) of the Sentencing Act expressly provides that offences necessarily committed prior to the commencement of the Sentencing Act will satisfy the conditions of s 53.
Held per Kourakis CJ (Stanley and Doyle JJ agreeing), granting permission to appeal and allowing the appeal on additional grounds 1.1 and 2:
5. The evidence of the appellant’s partner’s illness is admissible on appeal.
6. The appellant is resentenced to imprisonment for 2 years and 10 months with a non-parole period of 2 years, 3 months and 1 week. The sentence is to be served on home detention. The head sentence and the non-parole period will commence on 26 March 2020.
Controlled Substances Act 1984 (SA) s 32; Summary Offences Act 1953 (SA) s 41; Sentencing Act 2017 (SA) ss 52, 53, 59, 71, sch 1 cll 2, 3; Summary Procedure (Indictable Offences) Amendment Act 2017 (SA), referred to.
R v Smith (1987) 44 SASR 587; R v Phillipou [2018] SADC 74; Mengersen v Police [2016] SASC 12; Walsh v Department of Social Security (1996) 67 SASR 143; R v C (2004) 89 SASR 270; R v Buckskin [2010] SASC 138; Neill v Police [1999] SASC 270; R v Filipponi (2016) 126 SASR 464, discussed.
R v De Simoni (1981) 147 CLR 383; R v Wirth (1976) 14 SASR 291, considered.
PHILLIPOU v THE QUEEN
[2020] SASCFC 21Court of Criminal Appeal: Kourakis CJ, Stanley and Doyle JJ
KOURAKIS CJ: This is an appeal brought by the appellant, Mr Phillipou, against the sentence imposed by a Judge of the District Court on one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
Mr Phillipou pleaded guilty to trafficking 3.11 grams of methylamphetamine, which was seized from his residence by police officers on 19 January 2016. The search was prompted by police surveillance of his residence, and information obtained from intercepts of his mobile telephone service.
The methylamphetamine was located on a kitchen bench, together with three bundles of cash totalling $21,750.00, numerous mobile phones and other drug related paraphernalia.
Shortly before the search was conducted, the police observed a woman arrive at Mr Phillipou’s home and stay for 20 minutes before leaving in a taxi with Mr Phillipou. That woman, ER, was later apprehended and found to be in possession of methylamphetamine, which the Judge found was supplied by Mr Phillipou. The correctness of that finding, and the way in which it was treated for the purposes of sentencing, are the primary issues in this appeal.
The matter was ultimately listed for trial on 18 June 2018, but resolved by way of Mr Phillipou pleading guilty on 19 June 2018 to the trafficking charge in full satisfaction of the Information, which had also charged Mr Phillipou with unlawful possession of the cash.[1] Mr Phillipou’s plea was taken on a contested factual basis and the disputed facts hearing was held on 19 June 2018. At that hearing, Mr Phillipou contended that he had merely taken part in the trafficking by allowing an acquaintance, AV, to enter and remain in his home with the methylamphetamine. The prosecution contended that the Judge should find that AV was not the source of the methylamphetamine.
[1] Contrary to s 41(1) of the Summary Offences Act 1953 (SA).
On 12 July 2018, the Judge handed down his ruling on the disputed facts hearing.[2] His Honour rejected Mr Phillipou’s story that AV brought the methylamphetamine to his house, and found that Mr Phillipou possessed the methylamphetamine for the purposes of sale.
[2] R v Phillipou [2018] SADC 74.
The Judge sentenced Mr Phillipou to a period of four years and five months imprisonment. The Judge found that Mr Phillipou was a serious repeat offender by virtue of s 53(1) of the Sentencing Act 2017 (SA) (the Sentencing Act), and imposed a non‑parole period of three years, six months and two weeks, being four‑fifths of the length of the head sentence. Both the head sentence and the non‑parole period were ordered to commence from 5 August 2018.
The Judge did not make any reference to giving Mr Phillipou credit for his plea of guilty before pronouncing his sentence. Only in response to an enquiry from the prosecutor, after the sentence was pronounced, did the Judge explain that he had considered whether or not a reduction should be made ‘but in view of the adverse findings … [he] … didn’t consider a discount was appropriate’.
The appellant appeals on the following grounds:
1.The Learned Sentencing Judge (LSJ) erred in sentencing the appellant against the background of a prior uncharged act of trafficking methylamphetamine to a female prior to police attending at the premises of the applicant on 19 January 2016.
Particulars:
1.1 The evidence was not capable of establishing proof of this uncharged act beyond reasonable doubt.
1.2 It was not put to the applicant in his evidence that he had trafficked as opposed to supplied.
1A.In the alternative to Ground 1, the LSJ erred by infringing the principle set out by the High Court in R v De Simoni in that sentence was passed upon crimes for which the applicant was not charged.
2.The LSJ erred in sentencing the applicant as a serious repeat offender (SRO).
Particulars
2.1 The SRO provisions of the Sentencing Act 2017 do not apply retrospectively, in that offences committed prior to the commencement of the current act are not to be considered qualifying offences permitting the declaration of an offender as an SRO.
3.[Abandoned].
4.[Abandoned].
5.The LSJ erred in failing to apply the statutory discount provided for the applicant’s plea of guilty.
Particulars
5.1 The decision of the LSJ to refuse any discount upon the applicant’s plea of guilty fails to take into account the utilitarian value of a guilty plea to the administration of justice in this State.
(Footnotes omitted)
The disputed facts hearing
An undisputed chronology of the prosecution evidence is set out in the appellant’s written submissions as follows:
Relevant chronology – 19 January 2106 [sic]
i)
4:35 pm
[ER] arrives in taxi at Marlborough street property. Taxi waits.
ii)
4:58 pm
[ER] departs Marlborough street property, the appellant follows shortly thereafter. Both get into waiting taxi.
iii)
5:02 pm
Appellant disembarks from taxi and enters Foodland, Fulham Gardens. Taxi departs.
iv)
5:17
[ER] disembarks from taxi at Godfreys store, 92 Sir Donald Bradman Drive, Hilton.
v)
5:40
[ER] departs Godfreys in a black Subaru with an unknown male.
vi)
5:45
[ER] disembarks from black Subaru at On the Run service station, corner of South and Henley Beach Roads.
vii)
5:47
[ER] exits On the Run service station.
viii)
5.50
[ER] boards bus on Henley Beach Road, Mile End.
ix)
6:15
[ER] disembarks bus on Magill Road, Stepney.
x)
6:19
[ER] apprehended by Detectives Tiss and Bull.
When ER was apprehended, police located two packages of methylamphetamine weighing 0.87 grams and 2.96 grams.
Mr Phillipou testified that earlier on the day of the police search he was visited by AV. AV was so affected by drugs that Mr Phillipou thought it best that AV not go back onto the street and allowed him to stay. Mr Phillipou saw AV consume some methylamphetamine in the kitchen near the bench top.
Mr Phillipou gave evidence that the money found at his unit was left there by AV, as was the bag of methylamphetamine. Mr Phillipou agreed that ER visited him, but said that she did so to drop off a Godfrey’s receipt. He denied supplying the methylamphetamine that was later found in her possession. Mr Phillipou testified that at the time he was wearing a moonboot for a leg injury and he took the opportunity of riding with ER in the taxi to nearby shops. From there, he visited a friend before being given a lift home.
Mr Phillipou testified that when he returned to his home he found AV still there ‘mucking around’. A little later, he heard AV call out ‘[c]ops are here’ and heard the back door fly open and then slam shut. Mr Phillipou claimed that he panicked, rushed downstairs to lock the back doors and then tried to dispose of what had been left by AV.
The Judge found that Mr Phillipou’s evidence was unreliable because of the changing nature of his evidence, from abstinence to regular drug taking in the lead up to and on the day. Unsurprisingly, his Honour rejected Mr Phillipou’s testimony that ER came to his home to drop in a Godfrey’s receipt. The Judge accepted that the presence of AV’s personal items on the kitchen bench allowed the possibility that AV left the premises hastily. However, the Judge doubted that AV would have left behind the methylamphetamine and cash if it were his.
The Judge rejected Mr Phillipou’s evidence that he was upstairs when the police arrived but had managed to rush downstairs to lock the rear doors before a police officer could reach them.
The Judge continued:[3]
[32]Still further, on the premise that AV was there and left through the back door, his only means of escape was either over the back fence - very unlikely in pressured circumstances and given the height of the rear dividing fence - or along the laneway. Turning left brings him back to the front of the premises where there were a number of police. Turning right appears to take him to a carport and then once again to the front of the block of Units.
(Footnote omitted)
[3] R v Phillipou [2018] SADC 74 at [32].
The Judge concluded:[4]
[35]On the basis of these conclusions, the defendant stands to be sentenced on the footing that the 3.11 g of amphetamine found on the kitchen bench was in his possession for the purposes of sale. It was surrounded by a plethora of material commonly associated with drug trafficking. There is on the other hand the distinct probability that the small amounts of amphetamine found in the other areas, were for domestic consumption. The sale to the woman apprehended at Magill that day was a sale made by him. No such inference can be drawn, however, from the fleeting visit of the Van driver to the Unit in the early evening of 19 January. The cash of $21,750.00 was his and no doubt the proceeds of the sale of methylamphetamine.
[4] R v Phillipou [2018] SADC 74 at [35].
I observe that the finding that Mr Phillipou sold the methylamphetamine to ER was collateral to, but bore circumstantially on, the primary issue in the disputed facts hearing. ER was an acquaintance of Mr Phillipou and there was no evidence that she had any reason to think that AV would be there. If she obtained the methylamphetamine whilst at Mr Phillipou’s home, that fact was circumstantial evidence that it was Mr Phillipou, not AV, who supplied it to her. The Judge’s finding that Mr Phillipou sold ER the methylamphetamine followed from his Honour’s conclusion that Mr Phillipou, and not AV, possessed the drug. It was not surprising, therefore, that the Judge did not give separate or additional reasons for so finding.
Importantly, after those findings were made, and in the course of sentencing submissions, counsel for Mr Phillipou informed the Judge:
I’ve taken instructions in my time and I want to state at the outset that my client admits and accepts that he at the relevant time, in January 2016, was a drug user and drug dealer, and that he was not only consuming drugs for his own addiction but he was also selling, in part to support his own habit, and in part, obviously, to make a profit.
As your Honour found, the amount of some $21,000 was taken by the police at the time of the raid in January 2016 and your Honour found that to be the proceeds of drug dealing. That is accepted and he admits it.
I’m also instructed to apologise to your Honour on his behalf for misleading the court, and I want to tell your Honour that he has, to me, expressed real contrition about his past and what he’s done and I know that talk is cheap and actions speak louder than words, but as Mr White has made observations in his report, it is possible that the birth of his son is such a changed factor that it offers some hope for his reform and him to change his life.
That full confession of the adverse finding made by the Judge cannot be ignored when considering the sufficiency of the prosecution evidence to prove that Mr Phillipou supplied ER with methylamphetamine.
Ground 1 – Supply to ER
The appellant challenges the Judge’s finding that the appellant sold the methylamphetamine found on ER on the basis that:
(1)the evidence did not exclude the alternative hypothesis that ER procured the methylamphetamine from someone other than Mr Phillipou;
(2)it was not put to Mr Phillipou that he had trafficked the methylamphetamine to ER; and
(3)the Judge’s reasons were inadequate.
All three complaints can be dealt with shortly. As to the first complaint, it follows from the fact that ER kept the taxi waiting that she did not intend to stay long. It is most improbable that she would travel by taxi to Mr Phillipou’s home to drop off a receipt for electrical goods when there was no apparent urgency to do so. Mr Phillipou testified that he took the opportunity to ask her for a lift to nearby shops to visit another friend. The most obvious reason for ER’s brief visit to a place from which, on his own admission, Mr Phillipou was supplying methylamphetamine was to purchase methylamphetamine from him. This is supported, to some extent, by the evidence of telephone contact between ER and Mr Phillipou earlier that day, and the evidence of other earlier telephone conversations between the two of them that were recorded and included discussion of drugs. It is theoretically possible that ER obtained the methylamphetamine from the man she met at Godfrey’s, but there was no evidence that that person was trading in methylamphetamine on that day. The combination of ER’s unexplained brief visit by taxi to Mr Phillipou’s residence and her possession of methylamphetamine just over an hour later supports a finding beyond reasonable doubt that Mr Phillipou supplied it.
The finding that ER obtained the methylamphetamine from Mr Phillipou was plainly correct.
As to the second complaint, it was put to Mr Phillipou that he was ‘the person who supplied ER with the methylamphetamine that was found in her possession that day’. He responded, ‘Not true’. It was not necessary to put anything further to him.
As to the third complaint, I accept that the Judge did not give any reasons for this finding. However, the finding was, as I explained in [19] above, collateral to the primary issue in the disputed facts hearing. In any event, it was the only conclusion which could reasonably be reached.
I would dismiss this ground of appeal.
The sentencing remarks
At the commencement of his sentencing remarks, the Judge summarised the findings he had made on the disputed facts hearing:
There is no need to go into the fine details as they are fully set out in the judgment delivered on 12 July 2018. The nub of the charge is that 3.11 g of amphetamine and cash of $21,750 was found in your possession on the kitchen bench of your home on 19 January 2016. Earlier that day you sold to a woman two plastic bags containing 0.87 and 2.96 g of amphetamines respectively. The 0.14 g of amphetamine crystals found in the upstairs bathroom and the 0.34 g in the master bedroom, together with an ice pipe, were for personal use. It is clear that you resumed an indulgent ice-taking lifestyle once released on parole on 12 June 2015 and that you continued to use drugs regularly.
The Judge then referred to Mr Phillipou’s criminal antecedents. He noted that the offences were committed whilst Mr Phillipou was on parole for an aggravated offence of committing an act likely to cause harm. The balance of the unexpired sentence that was breached was 23 days. The Judge referred to Mr Phillipou’s conviction and sentence in July 2011 for various offences, including trafficking in amphetamines. The first of the trafficking offences was constituted by possession of 3.5 grams of pure methylamphetamine together with cash in the sum of $17,800 in his home on 23 April 2009. The second involved possession of two small bags of methylamphetamine on 13 April 2010, weighing about one fifth of a gram and one gram respectively, at the Seaton Hotel.
The Judge noted that Mr Phillipou had dropped out of school after year 11 to focus on playing football and that he had held various forms of employment, including labouring, working in his father’s financial business and as a clerical assistant. The Judge noted the continuing support of Mr Phillipou’s family. His Honour referred to the diagnosis of polysubstance use disorder, post‑traumatic stress disorder and antisocial personality traits made in a psychological assessment of Mr Phillipou. His Honour referred to the recent birth of a son and Mr Phillipou’s expressed desire to become a responsible parent and turn his life around.
Ground 1A
Mr Phillipou contends that the Judge’s reference to the sale to ER in his introductory paragraph of the sentencing remarks breached what may be referred to as the De Simoni principle. In R v De Simoni (De Simoni), Gibbs CJ (Mason and Murphy JJ concurring) stated:[5]
… [T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
[5] (1981) 147 CLR 383 at 389.
The principle discussed in the above passage reflects the very nature of the judicial power to sentence. The power to sentence is enlivened only by a conviction and must be exercised only with respect to that conviction. The punishment must be limited to the offence of which the defendant is convicted. There is no power to punish for an offence of which the defendant has not been convicted.
Be that as it may, the principle was not breached by the Judge. On a proper reading of the introductory paragraph of the Judge’s sentencing remarks, the Judge was merely recounting, as a matter of history, his finding on the disputed facts hearing. There is no indication in the sentencing remarks that the Judge viewed the sale to ER as an aggravating circumstance. Indeed, it would have been artificial to do so.
I would dismiss ground 1A of the appeal.
Ground 5 – Failure to reduce for guilty plea
I would reject the complaint that the Judge erred in not reducing the sentence on account of Mr Phillipou’s plea of guilty. The position put by Mr Phillipou on the disputed facts hearing constituted no more than a fleeting possession, in a state of panic, of the drug left by another. His admission did not come close to an acknowledgement of the true level of his culpability. Moreover, his mitigatory explanation was, as he himself later admitted, concocted. It was necessary to hold a hearing to expose his lie. The prosecutorial and judicial resources of the State were wasted. Mr Phillipou showed no contrition but a blatant preparedness to perjure himself. While there remained some utilitarian benefit in the plea, this did not deprive the Judge of a discretion to deny Mr Phillipou any benefit on account of the matters to which I have referred.
To the extent that Mr Phillipou pursued his complaint that the Judge failed to consider his plea of guilty, the complaint has not been made good. While the Judge did not mention the plea in his sentencing remarks, and a reading of transcript suggests that the plea may have momentarily slipped from the Judge’s mind when announcing the sentence, his Honour then corrected himself and said that he had not overlooked the plea, but rather had decided, for essentially the reasons set out above, not to give him any credit for that plea. While the Judge ought to have mentioned this matter in his sentencing remarks, there is no basis for going behind his Honour’s assurance, only shortly after announcing sentence, that he had in fact had regard to the plea.
Ground 2 – Retrospectivity of serious repeat offender provisions
The transitional provisions in clauses 2 and 3 in Schedule 1 to the Sentencing Act relevantly provide:
Part 2—Transitional provisions
2—Transitional provisions
(1)Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.
(2)However—
(a) the old sentence reduction provisions of the repealed Act will continue to apply in relation to the sentencing of a defendant for an offence where the proceedings for that offence are commenced before the commencement of the amendments to the repealed Act to be effected by the Summary Procedure (Indictable Offences) Amendment Act 2017; while
(b) the new sentence reduction provisions of this Act will apply in relation to the sentencing of a defendant for an offence where the proceedings for that offence are commenced after the commencement of the amendments to the repealed Act to be effected by the Summary Procedure (Indictable Offences) Amendment Act 2017, regardless of when the offence was committed
(3)In this clause—
new sentence reduction provisions means Part 2 Division 2 Subdivision 4 of this Act;
old sentence reduction provisions means sections 10A, 10B and 10C and Part 2 Division 6 of the repealed Act;
repealed Act means the Criminal Law (Sentencing) Act 1988 repealed by clause 1.
Part 3—Transitional provision relating to Sentencing (Release on Licence) Amendment Act 2018
3—Transitional provisions
(1)Section 58 of this Act as in force immediately after the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 applies to the following applications:
(a) an application under that section for the discharge of an order for detention (whether the order for detention was made under section 57 of this Act or section 23 of the repealed Act) where the application is made after that commencement;
(b) an application under that section for the discharge of an order for detention (whether the order for detention was made under section 57 of this Act or section 23 of the repealed Act) where the application was made but not finalised before that commencement;
(c) an application under section 23A of the repealed Act for the discharge of an order for detention under section 23 of the repealed Act where the application was made but not finalised before that commencement.
(2)Section 59 of this Act as in force immediately after the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 applies to the following applications:
(a) an application under that section for the release on licence from an order for detention (whether the order for detention was made under section 57 of this Act or section 23 of the repealed Act) where the application is made after that commencement;
(b) an application under that section for the release on licence from an order for detention (whether the order for detention was made under section 57 of this Act or section 23 of the repealed Act) where the application was made but not finalised before that commencement;
(c) an application under section 24 of the repealed Act for the release on licence from an order for detention under section 23 of the repealed Act where the application was made but not finalised before that commencement.
(3) In this clause—
repealed Act means the Criminal Law (Sentencing) Act 1988.
Clause 2(1) is an unambiguous statement of the intention of Parliament that the Sentencing Act applies to any person sentenced after its commencement.
There is only one exception. Clause 2(2)(a) continues the sentencing reduction scheme of the repealed Criminal Law (Sentencing) Act 1988 (SA) where proceedings for an offence are commenced before the commencement of the amendments to the repealed Act to be effected by the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA).
Parliament therefore plainly adverted to the question of the Sentencing Act’s retrospective operation, and expressly provided for it to do so, save in that one respect.
Moreover, s 52(1)(d)(vi) of the Sentencing Act provides that a serious offence includes ‘an offence under a corresponding previous enactment substantially similar to an offence referred to in any of the preceding subparagraphs’. That subparagraph, therefore, expressly provides that offences necessarily committed prior to the commencement of the Sentencing Act will satisfy the preconditions of s 53.
There is, therefore, no scope for this Court to apply any presumption of statutory interpretation to achieve a contrary result.
I would grant permission to appeal but dismiss ground 2 of the appeal.
Fresh evidence
Application
After the Court reserved its decision on 19 August 2019, Mr Phillipou asked that the hearing be reopened for the purpose of receiving further evidence. The Court reconvened on 29 October 2019. The appellant’s counsel informed the Court that Ms Czaplinski, Mr Phillipou’s partner and the mother of his child, had been diagnosed with terminal cancer. The appellant sought leave to amend the grounds of appeal to include grounds that the sentence be set aside because of those changed circumstances. Those grounds are:
1.Having regard to the evidence previously not available to the Learned Sentencing Judge (LSJ), the Court should be satisfied that the sentence should be quashed on the basis that, having regard to the new material:
1.1 the appellant’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
1.2 it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
2.Having regard to all of the circumstances now existing, the sentence should be quashed and a Home Detention Order be imposed.
The Court gave directions as to the filing of further material and adjourned the matter to a further hearing on 21 November 2019. On that day, the Court was provided with the following further material without objection for the purpose of considering whether to admit it as further evidence on the appeal.
A report of Professor Price, an oncologist, confirmed that Ms Czaplinski had advanced colorectal cancer. Ms Czaplinski’s prognosis is uncertain and depends on response to therapy. The average life expectancy for the type and stage of cancer contracted by Ms Czaplinski is 20 to 24 months, but there is a risk of it being less in Ms Czaplinski’s case if she does not respond to the chemotherapy she is undertaking. The more common complications of that chemotherapy are fatigue, infection risk, diarrhoea and neuropathy. Her condition will be very painful and there is a risk of bowel complications. Ms Czaplinski’s capacity to look after herself and her family will be substantially reduced. Professor Price’s opinion is that she will require ‘significant assistance as time passes’.
Ms Czaplinski swore an affidavit in which she deposed that:
·her son, Arlo, is now 14 months old;
·she is 39 years of age; and
·she receives chemotherapy on a 14-day cycle.
Ms Czaplinski described this cycle as follows. On the first Monday, she receives chemotherapy over a period of four hours in hospital and is discharged with a drip feed that is connected to her arm. The drip feed remains in place until Wednesday. Ms Czaplinski limits her contact with Arlo in the first part of the cycle because of her fears about its toxicity. Her daughter helps her look after Arlo in those first three days of the cycle, but that assistance is limited because she is employed on a casual, ad hoc, basis. In her absence, Ms Czaplinski relies on Mr Phillipou’s parents. Ms Czaplinski deposed that she feels very drained by Wednesday, she is sensitive to the cold and has a sensation of pins and needles in her fingers, toes and mouth. She suffers nausea. She remains tired and ‘toxic’ for seven days after the drip is disconnected. She suffers from sweats and washes her clothes separately from the other family washing because she is concerned about the effect of that toxicity on Arlo. She recuperates in the period from Wednesday to Monday.
In the second week, Ms Czaplinski has more contact with her son but finds the additional activity painful.
Ms Czaplinski has an older son who is an apprentice gyprocker and lives with his father at Ingle Farm. Her son is not able to provide support. She describes her son as being ‘in denial about [her] diagnosis’. She also has a sister who lives in Alice Springs as a bookkeeper who has four children of her own and cannot assist in caring for Arlo. Ms Czaplinski’s parents are separated. Her father is recovering from throat cancer. Her mother has a full-time, six days a week job in a retail store in Golden Grove and is in a relationship with a man who lives at Blanchetown. Her mother stays at her home once every week to help, but is unable to provide any further assistance.
Ms Czaplinski suffers from the following ongoing symptoms: drowsiness, nausea, labour‑type pains, liver pain, sweats, dry mouth and incontinence. Ms Czaplinski has started to notice some memory loss.
Ms Czaplinski’s mother, Ms Krysha Czaplinski, provided an affidavit. She deposed to doing what she could to help her 14-month-old grandson but found that difficult because she worked six days a week in a retail store and was in a relationship with a man in Blanchetown.
The appellant’s father, Mr Peter Phillipou, also provided an affidavit. He is 70 years of age and his wife is aged 71 years. They have been married for nearly 46 years. He deposed that he worked as a superannuation/actuarial and personal financial consultant until he retired in 2011. He has two other sons, one of whom lives in Sydney and the other who lives in Adelaide. Mr Peter Phillipou continues to work in a property rental and management business with his brother. His brother is a licenced builder. Mr Peter Phillipou attends to the finances and administration of the business. He works for about 20 hours a week. Mr Peter Phillipou also drops off and picks up his grandchildren. He and his wife have supported Ms Czaplinski and Arlo over the last 15 months.
Mr Peter Phillipou deposed that one month after Arlo’s birth, Ms Czaplinski and Arlo moved into a house, near his home, owned by him. His wife provides them with home-cooked food four times a week, baby‑sits (predominantly at their own home) and also bathes and feeds Arlo regularly. However, his wife needs a cataract operation, which she has delayed because of the difficult circumstances that have beset Ms Czaplinski and Arlo. Mr Peter Phillipou also helps with Arlo’s baby‑sitting and takes Ms Czaplinski to appointments and shopping. Both Mr and Mrs Phillipou have increased their support following Ms Czaplinski’s diagnosis, but they have found it challenging. Mr Peter Phillipou deposed that he and his wife ‘desperately need more committed and regular assistance’ and that ‘the problems will only become worse as [Ms Czaplinski]’s health deteriorates’.
The legal principles
In R v Smith (Smith), King CJ set out the principles governing an appeal against sentence on the ground of fresh evidence: [6]
… 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, R v O’Shea (1982) 31 SASR 129 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.
While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant’s condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence. … I think that the events occurring since sentence are admissible to show the extent and implications of the condition of health which the appellant was in when he was sentenced. The evidence which proves the occurrence of those events and which bears generally upon the extent and implications of the AIDS condition from which the appellant was suffering at the time of sentence, meets the tests referred to above for the admission of fresh evidence on appeal. We therefore admitted the evidence.
[6] (1987) 44 SASR 587 at 588-589.
In R v C, Doyle CJ made the following observation on the difficulty in applying the distinction between circumstances occurring before and after sentence: [7]
[7] (2004) 89 SASR 270 at [19], [21], [32]-[34].
[19]The distinction drawn in Smith and other cases between events occurring before sentence, and events occurring after sentence, and between matters occurring after sentence that show the true significance of facts in existence at the time of sentence, and matters occurring after sentence that do not do that, is not always easy to draw. A survey of the cases, not surprisingly, reveals that some decisions seem to be close to the line. …
…
[21]Another illustration of the line to be drawn is provided by the decisions in Anderson and in Plumstead. In Anderson a relevant matter at the time of sentencing was that when the appellant was sentenced his son was suffering from leukaemia, and this was drawn to the judge’s attention, but after sentence was passed the son suffered a relapse, was likely to undergo a bone marrow transplant and, according to the evidence, would benefit significantly if the appellant was able to provide ‘practical and emotional support’ to his son. The court admitted that evidence and, on the basis of it, reduced the sentence on appeal. On the other hand, in Plumstead, after sentence was passed, the wife and two children of the appellant died as a result of a fire at their home. The court declined to interfere with the sentence that had been passed, although whether it did so on the basis that it was not open to the court to interfere because the tragic death of the family members had no significance in relation to matters considered by the sentencing court, or because the circumstances, while tragic, did not provide a sufficient basis for interference, is not entirely clear.
…
[32]That survey of the case law indicates that usually evidence of events occurring after sentence is passed is incapable of demonstrating an error by the sentencing judge that would enliven the power to set aside a sentence as erroneous, in exercise of the power conferred by s 353(4) of the CLCA. However, such evidence may establish that a matter that the sentencing court treated as material is now to be seen in a new light, or has a new significance, as a result of events occurring after sentence that were not anticipated and, usually, could not reasonably have been anticipated. In such cases, because the evidence of matters occurring after the passing of sentence will throw new and significant light on a matter relied on by the sentencing court, the evidence will be admitted and can be acted on. For present purposes it is not necessary to decide whether, in a case in which evidence of facts occurring after sentence is admitted, the court must be satisfied in the light of that evidence that the sentence passed can be said to be erroneous, or whether, having admitted the evidence, the court simply reconsiders the sentence in the light of all the circumstances including the further information.
[33]If the evidence of matters occurring after sentence is merely evidence of a new fact or event, not bearing upon a matter that was material at the time of sentence, and being significant only because it would be material were sentence to be passed at the time of appeal on the basis of all material then available, the evidence will not be admitted, or if admitted will not provide a basis for interference on appeal.
[34]The distinction which is drawn by the cases is one based on practice rather than on logic, but in my opinion the practice reflects a sound distinction of principle. As well, there are solid practical justifications for the cautious approach that has been taken. The case of the appellant now before the court is, in principle, no different from the case of an appellant who says that after being sentenced he or she has undergone a religious conversion and is now a changed person, or who says that since being sentenced he or she has reflected on the past, is now genuinely remorseful and is now intent upon rehabilitation. If circumstances of that kind provided a basis for interference on appeal, in particular circumstances that are the result of a conscious decision or choice by the appellant, it would be difficult to put an end to the sentencing process.
(Citations omitted)
In Neill v Police,[8] Doyle CJ considered the admission of further evidence on an appeal against a sentence imposed in the Magistrates Court. The appellant appealed against a sentence of four years, with a non‑parole period of two years and six months, imposed for multiple breaking and entering, breach of bail and other dishonesty offences.
[8] [1999] SASC 270.
Mr Neill had an unusually difficult upbringing as a child. He was dependent on heroin from the age of 16 and had been admitted into a methadone program which had some success. He had not been employed for some years. Mr Neill was caught in a cycle of drug addiction and he offended to support his addiction.
Between the sentencing in the Magistrates Court and the hearing of the appeal, Mr Neill’s partner, and the mother of his children, died. Mr Neill’s desire to break his heroin addiction for the sake of his children was recorded in a psychiatric report received by the Magistrate.
Doyle CJ received and acted on the fresh evidence, explaining: [9]
[20]It is only in limited circumstances that it is appropriate to receive such evidence. In R v Smith (1987) 44 SASR 587 the court dealt with the power of the Court of Criminal Appeal to admit fresh evidence in an appeal against sentence under the Criminal Law Consolidation Act. It may be that the test under that Act is not the same as the test under the Magistrates Court Act. The power to receive fresh evidence in appeals pursuant to s42 of the Magistrates Court Act may be a wider power, but I do not have to decide that.
[21]In Smith the court held that fresh evidence could be admitted if it relates to a matter that was before the court when sentence was passed, but the fresh matter reveals an aspect of that matter that would not have been known at the time. I refer to the judgment of King CJ at 588 and also to the decision in R v Amuso (1987) 138 LSJS 53 at 56 to 57. I mention in passing that the power of the court to receive fresh evidence cannot be fettered by hard and fast rules, see Gallagher v The Queen (1986) 160 CLR 392 at 395 Gibbs CJ.
[22]So even if the test under the Criminal Law Consolidation Act has to be applied here, it is satisfied in this case. The impact of the sentence on Mr Neill’s family was a matter relied on before the magistrate. The death of Ms Pavey and its effect on the children could not have been known at the time. For those reasons I can act on the further material.
[9] Neill v Police [1999] SASC 270 at [20]-[22].
In Mengersen v Police,[10] the appellant contended that a ‘spasm attack’ his partner, for whom he had been a carer, suffered after his imprisonment, and which was found to be attributable to a prolapse of the spine, bulging discs and arthritis, should be received as further evidence. A medical report confirmed that she had lost significant function. Her spasticity, a condition from which she had suffered as a result of an incident when she was a child, had deteriorated. The respondent accepted that the evidence was fresh evidence. Vanstone J reiterated the principles stated in Smith before proceeding to consider the weight given to changed circumstances adversely affecting the children of a prisoner:[11]
[16]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’. Reference was made on appeal to a number of cases that have applied this principle.
[17]… 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.
[18]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.
[19]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.
[20]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’.
(Citations omitted)
[10] [2016] SASC 12.
[11] Mengersen v Police [2016] SASC 12 at [16]-[20].
In Walsh v Department of Social Security, Perry J emphasised the importance of considering the effects of imprisonment on the children of defendants: [12]
In this case, it was particularly important that the learned sentencing magistrate have regard to the combined effect of the sentences imposed upon both appellants upon the welfare of their dependent children. Common law principles of sentencing would compel consideration of that consequence. The need to have regard to that factor is referred to expressly in s 16A(2) of the Crimes Act, which lists the various matters which the court must take into account in determining the sentence to be passed. One of them (subs (2)(p)) is ‘the probable effect that any sentence or order under consideration would have on any of the person's family or dependants’.
Various international instruments which have been entered into by Australia emphasise the protection by the society and the State of the family as the natural and fundamental group unit of society, and preservation of the rights of children. Although such international instruments do not form part of Australian law, they serve to underscore the importance of provisions such as s 16A(2)(p) of the Crimes Act, which, where possible, should be construed and applied consistently with them. So that while we should always bear in mind the principles which find expression in relevant international instruments, particularly those which have to do with human rights, recourse to them in this case is hardly necessary, as s 16A(2)(p) of the Act is clear and unambiguous in its terms.
(Footnotes omitted)
[12] (1996) 67 SASR 143 at 147.
In R v Buckskin, I attempted a reconciliation of the competing views, in R v Wirth,[13] expressed by Bray CJ and Wells J:[14]
[108]It is often observed that sentences of imprisonment necessarily impose hardship upon the dependants of a convicted person. In R v Wirth, Bray CJ thought that it would be patently unjust if two people accused of the same crime in the same circumstances with no other differentiating factor were to receive different sentences because of the effect of the sentence on the family of one. Bray CJ accepted that it may be that in ‘extreme cases’ the court could take into account the effect of the sentence, but he found it difficult to envisage any circumstance where it would be logical to do so. Wells J thought that ‘hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so’.
[109]The exception articulated by Wells J has been recognised in many cases since. In my respectful opinion, even though the exception is not strictly logical by reference to matters of sentencing principle, it is justifiable on the grounds of public policy. In my view, where a claim is made to mitigate a sentence on the grounds that it will adversely affect an offender’s family, the court must necessarily weigh the public interest in imposing a sentence which sufficiently serves the purposes of punishment and deterrence against the public interest in the welfare of the children and dependents of the offender. The offender’s failure to discharge his or her duty to them does not extinguish the public interest in their welfare. The welfare of children is a matter of public interest of the highest importance.
[110]With respect, I do not find the threshold test of ‘exceptional circumstances’ useful because it focuses on circumstances which are peculiar instead of the substance of the concern about the childrens’ welfare and its relationship to the other sentencing considerations. I would prefer to take the approach that the welfare of the children of an offender who faces imprisonment is always a relevant consideration but that in the majority of cases it will have no material effect on the sentence imposed because of the public interest in the imposition of condign punishment. However, the effect of imprisonment of an offender on his or her children or other dependents must be considered in the circumstances of each case and an appropriate balance struck between their welfare and the need to protect the community through the enforcement of the criminal law. The approach I prefer probably differs little in the results it yields, but in my respectful opinion it better explains that result and, in part at least, answers the illogicality which concerned Bray CJ in Wirth.
(Footnotes omitted)
[13] (1976) 14 SASR 291.
[14] [2010] SASC 138 at [108]-[110].
Application to this case
In the course of sentencing submissions, the Judge received a letter written by Ms Czaplinski. She wrote of her regret that Mr Phillipou was ‘unfortunately missing out on those special moments to develop a relationship and strong bond with his son’. She explained that ‘[they] are blessed to have a healthy happy baby boy that needs his father home’. Ms Czaplinski expressed her hope that Mr Phillipou would become a father whom ‘his son will grow up to be proud of’.
In his sentencing remarks, the Judge addressed the family circumstances of Mr Phillipou as follows:
Your family speak of the continuing support they intend to provide you, of your regret, of the huge disappointment in not being present when your son was born and of your desire to ‘devote [your] life to supporting the little baby’. In a letter submitted to the court you speak of the growing realisation that you were exposed to drugs at an early age soon after commencing high school and of the family’s ‘dismay and horror’ at the extent that drug taking became over the years.
It is plain that the care of Mr Phillipou’s son, an important aspect of which is the father-son relationship, and the effect of Mr Phillipou’s incarceration on that care and relationship, was a matter on which Mr Phillipou relied in the sentencing hearing. Indeed, in the generality of cases in which the parent of a young child is to be sentenced, it is both relevant and important to consider the effects of imprisonment on the welfare of the child. It was a matter referred to by the Judge in his sentencing remarks, and hence, it must be inferred, relied upon by his Honour.
Conclusion
At the time that Mr Phillipou was sentenced, the care of his young son and the importance of the paternal relationship did not have the weight it now has because of Ms Czaplinski’s illness. That is precisely why the evidence of her illness is admissible on the appeal. I would give permission to appeal on the additional grounds of appeal and would receive the further evidence.
The importance of parental love and affection, particularly in the early development of a child, is self-evident. When the parent is suffering a terminal illness, his or her child is necessarily deprived of that affection and support. There are sufficient prospects in this case that, with the support and guidance of his parents, Mr Phillipou will fill at least some of that loss, and provide meaningful assistance to the help provided by his parents. There is also a chance that he will, through that care, make amends for the suffering his offending has caused.
I would allow the appeal on grounds 1.1 and 2 of the additional grounds. The welfare of Mr Phillipou’s child and Ms Czaplinski justifies a sentencing disposition which will allow him to care for them in the immediate future. It is difficult to reduce the head sentence or the non-parole period by much given the seriousness of the offending. Section 71(2)(a) of the Sentencing Act provides that a court must not make a home detention order if it would, or may, undermine public confidence in the administration of justice. It was a consideration of that kind which moved this Court to set aside a home detention order made in sentencing a drug trafficker in R v Filipponi,[15] under the Criminal Law (Sentencing) Act 1988 (SA) provisions, even though those provisions did not include an equivalent of s 71(2)(a). In the special circumstances of this case, I am satisfied that Mr Phillipou is a suitable person to serve the sentence on home detention, despite his past offending, because of the support he will have from his parents and because of the importance he attaches to caring for his son.
[15] (2016) 126 SASR 464.
A substantial sentence served on home detention will maintain sentencing standards, optimise the supervision of Mr Phillipou by Community Corrections and serve the purpose of confining Mr Phillipou to the home in which he will take on his responsibilities as a father and as his partner’s carer. I would, therefore, make a home detention order pursuant to s 71(1) of the Sentencing Act.
I doubt that s 71 allows a home detention order to be backdated to accommodate a period of imprisonment actually served. I would instead take into account the period of about 19 months which Mr Phillipou has spent in custody by reducing the length of the period of home detention. I would set aside the sentence of 4 years and 5 months imposed in the District Court. I would impose a sentence of imprisonment for 2 years and 10 months. I would impose a non-parole period of 2 years, 3 months and 1 week. There is no good reason to suspend this sentence. I would order that the sentence be served on home detention. Both the head sentence and the non-parole period will commence on 26 March 2020.
It is a consequence of taking into account the time already served in prison in that way that Mr Phillipou will spend more months in detention than he would have pursuant to the sentence of imprisonment imposed by the Judge. However, home detention is less burdensome than imprisonment and Mr Phillipou will have the benefit of supervision whilst on home detention. To that end, I would order that Mr Phillipou:
1.Be of good behaviour, and comply with all of the conditions of this order.
2.Be under the supervision of a Home Detention Officer for the period of this order and obey the lawful directions given to him by the Home Detention Officer to whom he is assigned.
3.Reside at the residence specified by the Court throughout the period of the Home Detention Order and will not be absent from that address except for the purposes of:
a.remunerated employment (only if confirmed and approved by the Home Detention Officer);
b.his urgent medical or dental treatment;
c.averting or minimising a risk of serious injury or death to himself or to any other person;
d.attendance at any of the following, if approved or directed to do so by the Home Detention Officer to whom he is assigned:
i. a place for the purposes of undergoing assessment or treatment (or both) relating to his mental or physical health; or
ii. attendance at an intervention program; or
iii. a course of education, training, instruction or any other activity; or
e.any other purpose approved by the Home Detention Officer to whom he is assigned.
4.Travel to the nominated address immediately upon release, and upon arrival he contact the Home Detention Unit of the Department for Correctional Services by telephoning the number specified by the Court.
5.If, in the case of an emergency, he obtains permission from the Home Detention Officer to whom he is assigned to reside at a new address, he must make an application to the Court for a variation of his Home Detention Order conditions within two working days, but he can reside at that address until that application for variation is considered by the Court.
6.Wear an electronic transmitter and comply with the rules of electronic monitoring, including the requirement to fully charge the transmitter daily, for the term of the Home Detention Order.
7.Provide and maintain in operating condition an active mobile telephone service with an appropriate mobile communication device and give the contact details to the Department for Correctional Services so that they may use it to communicate with him at all times while on electronic monitored home detention.
8.Present himself at the front door of his nominated address at the request of the Home Detention Officer to whom he is assigned, and respond to any telephone call at that address at any time, unless absent in accordance with these conditions.
9.Surrender any passport he possesses to the Registrar of the Supreme Court at the Supreme Court Registry, and not apply for a passport, nor attend within the boundary of the terminal building at any international airport whilst subject to a Home Detention Order.
10.Not leave the State without the prior written permission of the Home Detention Officer to whom he is assigned.
11.Not possess a firearm, or ammunition or any part of a firearm.
12.Not use amphetamine or any analogue of amphetamine other than for therapeutic purposes.
13.Submit to such tests (including testing without notice):
a.for gunshot residue; or
b.relating to drug use,
as a Home Detention Officer may reasonably require.
14.Attend and complete any assessment, counselling, treatment and therapeutic programs as may be deemed appropriate to effectively case manage his individual needs as directed by the Home Detention Officer to whom he is assigned.
15.Authorise the Department for Correctional Services to reveal that he is subject to a Home Detention Order to any person it believes reasonably necessary for the purposes of confirming employment and compliance with the conditions of this order.
STANLEY J: I would allow the appeal. I agree with the reasons of the Chief Justice and the orders he proposes.
DOYLE J: I would allow the appeal. I agree with the reasons of the Chief Justice and the orders he proposes.
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