SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)
20 August 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
FRESH EVIDENCE - EVENTS OCCURRING AFTER SENTENCE
The appellant was sentenced in the Supreme Court to 10 years imprisonment with a non-parole period of 8 years and 6 months following his conviction on a charge of armed robbery of a bank - shortly after the sentence was imposed, he passed on to the police certain admissions made to him by a fellow inmate in gaol who confessed to a rape and two murders - the information was a significant factor in securing convictions of the offender - on a subsequent appeal against the sentence, the appellant claimed that he was entitled to credit for the assistance given to the police - consideration of the circumstances in which the court may reconsider a sentence by reference to events occurring after it was passed - held (by majority, Perry J dissenting) that evidence of events occurring after sentence is passed is incapable of demonstrating appealable error by the sentencing judge unless it sheds new light on material before the judge at the time of sentencing - the assistance given by the appellant after he was sentenced did not satisfy that test - the only recourse available to the appellant was by way of a petition seeking the exercise of Her Majesty's mercy - appeal dismissed.
Criminal Law Consolidation Act 1935 s 353 and s 359, referred to.
Plumstead v The Queen (1997) 7 Tas R 206; R v Taylor and O'Meally [1958] VR 285; R v Johansen (No 2) [1917] VLR 677; House v The King (1936) 55 CLR 499; Wong v The Queen (2001) 207 CLR 584; R v Smith (1987) 44 SASR 587; R v Dorning (1981) 27 SASR 481; R v O'Shea (1982) 31 SASR 129; R v Green (1918) 13 Cr App R 200; R v Ferrua (1919) 14 Cr App R 39; R v Brain (1999) 74 SASR 92; R v Babic [1998] 2 VR 70; Anderson v The Queen (1996) 18 WAR 244; Dooley v The Queen [2003] NT CCA 6; R v Eliasen (1991) 53 A Crim R 391; R v Rostom [1996] 2 VR 97; R v WEF [1998] 2 VR 385; R v PFD (2001) 124 A Crim R 418; R v McLachlan [2004] VSCA 87; Rechichi v The Queen [2003] WASC 98; Parry v The Queen [2003] WASCA 222; R v Willard (2001) 120 A Crim R 450; R v MJM [2004] NSWCCA 66; R v Maniadis [1997] 1 Qd R 593; R v Hughes [2004] 1 Qd R 541; R v Stanley (1998) 7 Tas R 357; R v J (1992-1993)
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Details
- AGLC
- R v C [2004] SASC 244
- Case
- [2004] SASC 244
- Decision Date
CaseChat Overview and Summary
The appellant in this case, who was previously convicted and sentenced for armed robbery, is challenging the sentence imposed on him, claiming it to be manifestly excessive considering circumstances that arose after the sentence was handed down. The court was required to decide whether the appellant's post-sentence actions, specifically providing information about a fellow inmate's crimes, could be considered as fresh evidence to reconsider the sentence. The court had to examine if such evidence could demonstrate an error by the sentencing judge that would warrant a reduction in the sentence. The court examined the legal framework and past precedents that govern the admissibility of fresh evidence in sentencing appeals. It found that while fresh evidence is admissible to shed new light on facts that were material at the time of sentencing, it cannot be used to demonstrate appealable error based solely on events occurring after the sentence was passed. The court concluded that the appellant's assistance to the police post-sentencing did not meet the criteria for fresh evidence that could alter the original sentence, and therefore dismissed the appeal. The reasoning was based on the principle that such post-sentence actions do not constitute appealable error unless they reveal unforeseen circumstances that significantly impact the material facts considered at the time of sentencing.
Orders
Orders of the court
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Background
Background to the litigation
The appeal is advanced on one ground only, namely:“1.The sentence imposed was manifestly excessive, having regard to circumstances arising since sentence was imposed, as outlined in the affidavits of Gerald Michael Feltus (the South Australian Police Department) and Mark Myers (of the Correctional Services Department).”I will refer to the content of those affidavits in due course.Background circumstances The appellant, who is now aged 56 years, has had a sad personal history. He was born whilst his father and mother were engaged to be married, but his father was killed in an accident before the marriage took place. Subsequently, the appellant had a poor relationship with both his step-father and mother. When he was seven, his mother sought assistance from the authorities on account of his frequent truancy from school and habitual stealing. But his parents continued to be unable to control him. In 1957, when he was before the Juvenile Court (as it then was), at the age of nine years, he was placed under a custody and control order until the age of 18 years. Thereafter, the appellant accumulated a depressing criminal record, both as a juvenile and as an adult. He recorded convictions in South Australia, Queensland and New South Wales. These included convictions for offences of dishonesty, including larceny, false pretences, breaking and entering and receiving, together with offences of assault, escape from prison and illegal use of motor vehicles. Since the age of nine the appellant has spent a total of only two and a half years out of custody. In a report furnished by the Parole Board in May 1997, the appellant was described as “thoroughly institutionalised”. The report also notes that he had “never in the past successfully completed parole”. In 1992, the appellant was found guilty by verdict of a jury of armed robbery. The offence was committed in 1990 when, together with another man, the appellant robbed a suburban branch of the Commonwealth Bank, making off with over $14,000. For that offence he was sentenced on 23 June 1992 to 9 years imprisonment, to commence at the expiration of another sentence which he was then serving. The court declined to fix a non-parole period. On 29 August 1997, the appellant applied for the fixation of a non-parole period, but that application was refused. In the result, after serving out that term of imprisonment, the appellant was discharged from Mount Gambier Gaol on 28 October 1999. Eight days later, on 5 November 1999, he committed the armed robbery now in question. It is clear that the appellant and the co-offender, Westaway, planned the robbery while both were inmates of the Mount Gambier Gaol. It is unnecessary to go further into the circumstances of the robbery. However, as appears from the remarks made by Bleby J in the course of pronouncing sentence, at the sentencing stage the appellant recanted the evidence which he had given at the trial, when he had denied any involvement in the offence. While then admitting his guilt, the appellant put forward a version of the circumstances of the offence which the sentencing judge found to be at odds with evidence given at the trial, which he preferred.
Evidence
Evidence Before The Court
In the exercise of its powers under s 353(4), the court has power to admit evidence on the hearing of the appeal. The relevant powers are conferred by s 359 of the CLCA. Those provisions are set out in the reasons of Perry J. I will not repeat them. It suffices to say that they are to be applied in the light of the nature of the appellate processing in which the court is engaged.Appeals based on evidence not before the Sentencing Court An error in the sentence imposed by the sentencing judge will not be demonstrated, in the ordinary sense, or in the sense identified in Taylor and O’Meally, by establishing that facts have occurred after the passing of the sentence that, if taken into account, would make it appropriate to pass a lesser sentence were the sentencing discretion to be exercised afresh. There are persuasive practical reasons also for concluding that error is not demonstrated in this way. The power of the court to receive evidence in an appeal against sentence, such evidence often being called fresh evidence, and the approach to the exercise of the power, are also subject to a well-settled rule of practice. In R v Smith (1987) 44 SASR 587 King CJ said at 588-589:“The task of the Court of Criminal Appeal, speaking generally, is to see whether the trial judge went wrong on the material before him: R v Dorning (1981) 27 SASR 481 at 488. There is power to receive fresh evidence subject to certain conditions which are summarised in Dorning’s case at 485. 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. In R v Green (1918) 13 Cr App R 200 evidence was admitted on appeal to show the true character and value of information given by the appellant to the police before sentence, as disclosed by subsequent events. In R v Ferrua (1919) 14 Cr App R 39 the evidence admitted on the appeal revealed how serious the appellant’s state of health had been when he was sentenced. 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.”That was a case in which it was known, when the appellant was sentenced, that he had antibodies of the AIDS virus, but after sentence was passed his condition worsened, and the worsening was attributable to the stress associated with imprisonment. Accordingly, as King CJ said, the further evidence that was put before the Court brought to the Court’s attention a change in the appellant’s condition while imprisoned, the change being attributable to imprisonment, the change being one which apparently was not anticipated or drawn to the sentencing Judge’s attention as a possible occurrence.
Decision
Reasons for decision
On the other hand, there have been cases in which an appellant has been sentenced on the basis that the appellant has already provided assistance to the police or to prosecuting authorities, or had agreed to do so, and in which evidence has been admitted of events occurring after sentence was passed with a view to establishing that the circumstances of the appellant’s imprisonment were more adverse than could have been anticipated when sentence was passed. That is, that the risk of harm to the appellant, attributable to the provision of assistance, had led to the appellant undergoing greater restrictions, or being exposed to greater risks while in prison, than was anticipated when sentence was passed, or could have been anticipated. Such a case is R v Rostom (above). In that case, while recognising the rule of practice to which I have referred, and earlier Victorian decisions such as Eliasen, the Court admitted the evidence and, on the basis of the evidence, reduced the sentence. The Court took the view that the evidence tendered on appeal showed “the true significance of facts which were in existence at the time of sentence”; at 101. As well, the Court was satisfied that inadequate information about the assistance given to the prosecuting authorities had been put before the sentencing Judge: at 104.Conclusion 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: see Brain at [92]–[93] Doyle CJ. 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. 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.
Ratio Decidendi
Legal Principle Established
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