R v C - [2004] SASC 244

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) 59 SASR 145; Postiglione v The Queen (1997) 189 CLR 295; R v Henry (1992) 28 NSWLR 348; R v Prideaux [1995] 2 VR 97; R v Nguyen (1989) 50 SASR 361; R v Salameh (1991) 55 A Crim R 385; R v McGoohin (1986) 20 A Crim R 438; R v Golding (1980) 24 SASR 161; R v Binder and Anor (1989) 42 A Crim R 221; R v Bonnie (2003) 85 SASR 52; R v Tee (1993) 61 SASR 501; R v Many (1990) 51 A Crim R 54; Perez-Vargas and Anor (1987) 8 NSWLR 559; R v Malvaso (1989) 168 CLR 227; Signorotto v Nicholson [1982] VR 413; In re van Beelen (1974) 9 SASR 163; R v Knights (1993) 70 A Crim R 105; McDougall v Betts (1979) 21 SASR 424; R v Amuso (1987) 32 A Crim R 308; R v Best (1998) 100 A Crim R 127; R v Goodwin (1990) 51 A Crim R 328; R v Mitchell (2000) 112 A Crim R 315; R v Williams Unreported, Crt of Appeal VIC No 153/1995, 18.9.95; R v Bruzzese Unreported, Crt of Criminal Appeal VIC, 8.12.82, considered.

R v C
[2004] SASC 244
Court of Criminal Appeal: Doyle CJ, Perry and White JJ

DOYLE CJ: I have had the benefit of reading the reasons prepared by Perry J. I adopt his statement of facts, his outline of the circumstances as they were before the sentencing Judge, and his statement of the basis upon which the appeal was argued. I would admit the affidavits tendered by the appellant although, as will appear, I conclude that they do not provide a basis for allowing the appeal.
I consider that the Court should not interfere with the sentence imposed by the sentencing Judge. I agree that the assistance provided by the appellant to the police warrants a reduction in the sentence. I accept that if the assistance had been provided before sentence was passed, the sentencing Judge would have reduced the sentence because of that assistance. There is adequate authority to support that view. Perry J has referred to the decisions on point. I agree also that a reduction in the sentence, of the order proposed by Perry J, is appropriate. But in my view the present case is one in which the reduction, if it is to be made, must be made by Her Excellency the Governor, exercising the prerogative of mercy.
This is not a case in which the Court should intervene. To do so would involve a departure from settled practice, and would set a precedent of an undesirable kind in relation to appeals against sentence based on events occurring after sentence is passed.
Appeal against sentence – statutory provisions
The power of the Court to set aside a sentence on appeal, and to re-sentence the offender, is to be found in s 353(4) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). That subsection provides as follows:
“(4)Subject to subsection (5), on an appeal against sentence, the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed, and in any other case shall dismiss the appeal.”
Subsection (5) prohibits the Court from increasing the severity of a sentence on an appeal by a convicted person.
This provision was adopted in South Australia and other Australian States, following the model of s 4 of the United Kingdom Criminal Appeal Act 1907.
As the process is one by way of appeal, it is not surprising that the power that s 353(4) confers should have been treated as being enlivened only when error on the part of the sentencing Judge has been demonstrated. Almost from the outset it was taken as settled that this provision did not empower the court to re-sentence afresh, on the basis of such material as might be put before it, or even on the basis of the material before the sentencing Judge.
As I have said, legislation in virtually identical terms was enacted in all States, following the United Kingdom model. The approach taken to the provision in Australia appears to have been the same as the approach taken by English courts to the equivalent provision.
However, there are some differences from State to State, that might affect the application of the provision in particular circumstances in a particular State. Appeals against conviction are regulated by s 353(1) of the CLCA, a provision which also follows the United Kingdom model, and which was followed in substantially the same terms in all States. One of the grounds on which the Court can set aside a conviction is that there was a miscarriage of justice. In South Australia s 353(1) applies only to an appeal against conviction. In Plumstead v The Queen (1997) 7 Tas R 206, Cox CJ made the point at 209 that the Tasmanian equivalent, s 402(1) of the Criminal Code, is not in terms restricted to appeals against conviction. He appeared to be of the opinion that an appeal against sentence might be allowed on the ground that to allow the sentence to stand would give rise to a miscarriage of justice. Having regard to the form of s 353, such an argument does not appear to be open in South Australia.
Subject to that cautionary note I proceed on the basis that for the purposes of the present appeal the statutory provisions in other States are in the same form, and the decisions in other States are relevant to the approach to be taken to the South Australian provisions. However, it does need to be borne in mind that decisions in relation to appeals against sentences in Tasmania, or in a State in which the legislation is in the same form as in Tasmania, may have to be considered on the basis that a sentence can be set aside on a basis not available in this State.
The approach taken by Australian courts to the exercise of the power conferred by s 353(4) of the CLCA, and its equivalent in other States, is conveniently summarised by Lowe and Gavan Duffy JJ in R v Taylor and O’Meally [1958] VR 285 at 289. Their Honours were considering the application of s 594(4) of the Crimes Act 1928 (Vic), identical in substance to s 353(4) of the CLCA. With reference to the Victorian subsection, their Honours said:
“We recognize that no practice can set a legal limit to the authority given to the court by that sub-section nor relieve the court from the duty imposed on it of determining whether a sentence should have been passed different from that passed at the trial. But how that duty should be approached and what weight should be given to various matters may for the sake of uniformity and for the information of those who may be concerned in these applications be regulated by the court. And this the court has done. In fact the Full Court has adopted and applied a practice which has to our knowledge been followed for at least twenty-five years, and the observations of Cussen, J., in R. v. Johansen (No. 2), [1917] V.L.R. 677, at p. 680, suggest that it was well established in 1917. That practice may be described as follows: It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary it will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously – not merely arguably – too severe or too lenient, it will not interfere.”
This approach to the exercise of the power recognises that the imposition of a sentence involves the exercise of what has often been described as a broad discretion. The role of a court of appeal is the usual role of such a court when reviewing the exercise of a discretion. In particular, when the issue is whether the sentence is too severe or too low, the approach of the court must conform with the principle stated by the High Court in House v The King (1936) 55 CLR 499; see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605-606 Gaudron, Gummow and Hayne JJ.
In short, in the exercise of the powers conferred by s 353(4), the settled practice is that the court intervenes only if error of the kind identified in Taylor and O’Meally is established, that matter being approached in the light of the principles stated in House, when the question is not whether the judge’s reasons disclose an error, but whether the sentence itself, in light of the circumstances, is manifestly excessive.
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.
As can be seen, in the passage cited King CJ distinguished between the reception on appeal of evidence as to events occurring before sentence, and events occurring after sentence. He said that evidence could be admitted of events occurring after sentence only if that showed “the true significance” of matters that existed at the time of sentence and, by implication, matters that were material to the passing of sentence.
The principle stated in Smith continues to be applied in South Australia: see R v Brain [1999] SASC 358; (1999) 74 SASR 92 at [86] Doyle CJ.
The observations of King CJ in Smith, and the decisions in R v Dorning (1981) 27 SASR 481 and R v O’Shea (1982) 31 SASR 129 to which he refers, have been referred to with approval on a number of occasions in other States. I refer, by way of example only, to decisions by courts of appeal in other States and the Northern Territory in R v Babic [1998] 2 VR 70 at 80-81; Anderson v The Queen (1996) 18 WAR 244 at 246 and 256-257; Plumstead v The Queen (1997) 7 Tas R 206 at 209 and 213; Dooley v The Queen [2003] NTCCA 6 at [36].
My reading of these and other cases suggests that the practice stated by King CJ is the practice followed in other States.
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. However, quite apart from the cases that have referred to Smith with approval, there is a substantial body of Australian law that takes the same approach. Once again, I will refer by way of illustration to some of the more recent decisions by courts of appeal, recognising, as I have already said, that in some cases the application of the practice to the facts might be debateable. The decisions are R v Eliasen (1991) 53 A Crim R 391 (Court of Criminal Appeal, Supreme Court of Victoria); R v Rostom [1996] 2 VR 97; R v WEF [1998] 2 VR 385; R v PFD [2001] VSCA 198; (2001) 124 A Crim R 418 (Court of Appeal, Victoria); R v McLachlan [2004] VSCA 87; Rechichi v The Queen [2003] WASC 98; Parry v The Queen [2003] WASCA 222; R v Willard [2001] NSWCCA 6; (2001) 120 A Crim R 450 (Court of Criminal Appeal, New South Wales); R v MJM [2004] NSWCCA 66; R v Maniadis [1997] 1 Qd R 593; R v Hughes [2003] QCA 460; [2004] 1 Qd R 541; R v Stanley (1998) 7 Tas R 357.
In a number of cases, including a number of those referred to above, the appellant has based an appeal on evidence that, since sentence was passed, the appellant’s state of health has declined or worsened in some way, meaning that the effect of imprisonment on the appellant would be harsher than could have been anticipated when sentence was passed, or that there is a real risk, not previously anticipated, that the appellant would die while imprisoned. Generally the court has allowed such evidence to be led, and has acted on it, when the health of the appellant or the appellant’s life expectancy was a relevant factor at the time of passing sentence, and evidence of later events threw a new light on the circumstances as they were when considered by the sentencing court. The significance of the distinction to be drawn here appears from some of the decided cases. In Babic (above) the appellant suffered a back injury while in prison. There is nothing to suggest that the condition of his back was of any particular significance when sentence was passed. The Court held that evidence of the back injury, and of how the back injury made prison life more difficult for him, was not admissible. McLachlan (above) is a similar decision. The appellant was apparently a paraplegic when sentenced. In appealing against sentence, he relied on the fact that while in prison he had fallen and had injured himself, and that this had added to the stress and fear that he experienced while in prison. Relying in part on the fact that the possibility of an injury while in prison was something the sentencing court had contemplated, the Court refused to interfere with the sentence on the basis of this evidence.
Another illustration of the line to be drawn is provided by the decisions in Anderson (above) and in Plumstead (above). 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.

There have been a number of cases in which sentence has been passed on the basis of an undertaking by the offender to provide assistance to the police in connection with the prosecution of co-offenders, or other offenders, including undertakings to provide evidence on the trial of co-offenders or other offenders, the offender in question later declining to give the promised assistance or to give the promised evidence. In some of these cases evidence as to these matters has been admitted because it was said to show that the basis upon which the sentence was passed was falsified: see R v J (1992) 59 SASR 145; R v Stanley (above). While such decisions might be said not to fall squarely within the rule of practice to which I have referred, I consider that they are consistent with it.
It is not uncommon for an appeal to be based on an apparent disparity between the sentence imposed on the appellant, and a sentence imposed on a co-offender. In some cases, reliance has been placed on a sentence imposed on a co-offender after the passing of the sentence under challenge on appeal. I doubt whether such cases are regulated or affected by the power of the court to receive evidence of facts occurring after the sentence had been passed. I consider that an appeal on the basis of disparity is one that raises an issue of sentencing principle, not depending upon the demonstration of error by showing that in the light of relevant facts and circumstances the sentence in question is manifestly excessive or otherwise erroneous. The sentencing principle which is brought into play in such an appeal is the principle of parity, which is that equal offences should be treated alike, and that in the case of co-offenders, differences in sentences should reflect differing degrees of culpability or differing circumstances: see Postiglione v The Queen (1997) 189 CLR 295 at 301 Dawson and Gaudron JJ.
On a number of occasions courts of appeal have dealt with appeals in which the appeal is based on evidence of assistance given to the police or to prosecuting authorities after sentence has been passed. The argument in these cases has been along the lines that evidence of such a matter provides a basis for deciding that the sentence should be reduced. Two broad bases for that reduction can be identified. First, that the provision of assistance may be evidence of reform by the appellant, and of the appellant’s progress towards rehabilitation. Second, and more commonly, that the value of the assistance to the police and the risk to the appellant of harm as a result of giving that assistance, warrant a reduction in the sentence. It is not necessary to refer to authority establishing that the provision of assistance to the police and the prosecuting authorities is a relevant matter when passing sentence, and will usually result in a reduction in the sentence that would otherwise be imposed.
In such cases there is a clear trend in the decisions that evidence of offers of assistance, or assistance given, after the passing of sentence, is not admissible, or at least not a basis for reduction of the sentence on appeal. The point is made in a number of the cases that in this respect assistance given to prosecuting authorities after sentence is passed is, essentially, no different from a number of other circumstances that might occur after sentence is passed which might, were the matter to be considered afresh, result in a different sentence being passed. The point is also made that the provision of assistance after sentence is passed throws no new light on a matter considered and weighed by the sentencing judge.
In R v Henry (1992) 28 NSWLR 348 the appellant provided assistance to the Independent Commission Against Corruption after his conviction. The Court of Criminal Appeal held that evidence of this may be appropriate for consideration by the Executive Government, but did not warrant intervention by the court: at 353. The material did not raise an error by the sentencing Judge.
In Willard (above), after being sentenced the appellant volunteered information to prison authorities which was potentially useful in the prosecution of other offences unrelated to her offence. The Court held that while the material put before it was relevant were the appellant to be re-sentenced, it could not be taken into account because it could not establish any error in the sentencing process: at 455.
In Dooley (above) the Court of Criminal Appeal of the Supreme Court of the Northern Territory considered an appeal in which at the time of sentencing the appellant had declined to identify a co-offender, but subsequently had done so. The appellant gave evidence at the trial of the co-offender. It was argued that the assistance provided by the appellant threw relevant new light on matters before the sentencing Judge, in particular the appellant’s prospects of rehabilitation. After considering a number of decisions, including a number of the decisions referred to by me, the Court concluded that the evidence did not provide a basis for interference on appeal. In such a case the reluctance of the Court to intervene is understandable, because the appellant had made a deliberate choice at the time of sentencing not to cooperate with the authorities. However, the fact remains that the Court adhered to the distinction that I have identified.
In R v MJM [2004] NSWCCA 66 the Court of Criminal Appeal of the Supreme Court of New South Wales considered an appeal in which the appellant had provided valuable information to the police in connection with a murder that the appellant had witnessed in prison. However, the appellant did not offer assistance, or provide assistance until after sentence had been passed. The Court proceeded on the basis that had the appellant made the offer of assistance before being sentenced, and had the matter been drawn to the attention of the sentencing Judge, it would have been “of considerable moment”: at [43]. However, the Court held that the application to adduce evidence should be rejected, because the material proposed to be put forward was not material that could be taken into account: at [45].
Perry J has referred to the discussion in R v Prideaux [1995] 2 VR 97. The remarks of Crockett ACJ indicate that he was prepared to contemplate the reception of evidence in circumstances not supported by the above cases. But in the end, the Court did not have to decide the point.
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.
For those reasons I conclude that in the present case the appeal must be dismissed. The appellant relies upon evidence of events occurring after the passing of sentence, being events that do not throw any new light on a matter considered by the court when passing sentence, and of significance to the sentence to be imposed. Of course, in a general sense the appellant’s character and prospects of rehabilitation were before the Court when he was sentenced, and were taken into account. But that is always the case. That of itself is not sufficient to provide a basis for the admission of the evidence and the setting aside of the sentence.
For those reasons I would dismiss the appeal. There is another remedy available to the appellant. As I have indicated earlier, I consider that this is an appropriate case for the exercise of the prerogative of mercy, and for a reduction in the appellant’s sentence of the kind proposed by Perry J. That is, however, a matter to be dealt with by Her Excellency the Governor in the light of such advice as might be given to her by Executive Council, if the appellant applies to Her Excellency for her to exercise the prerogative of mercy.
PERRY J: The appellant appeals against the sentence imposed upon him following his conviction on a charge of armed robbery.
The robbery was carried out at the Barmera branch of BankSA on 5 November 1999. Money to the amount of $25,505 was stolen.
The appellant was jointly charged with Peter Malcolm Westaway. Westaway pleaded guilty in the District Court where he was sentenced on 20 June 2000 to a term of imprisonment of 7 years and 9 months with a non-parole period of 4 years and 2 months, both commencing from that date.
The appellant was tried before a judge and jury in this Court, where he was convicted on 9 April 2001.
On 5 September 2001 he was sentenced by the trial judge to imprisonment for a period of 10 years with a non-parole period of 8 years and 6 months. The head sentence and non-parole period were directed to commence from 6 November 1999, being the date upon which the appellant was taken into custody.
It is from that sentence that the present appeal is brought.
Leave to appeal, together with an extension of time within which to appeal, was granted by order of a judge of the court on 26 March 2004.
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.
The sentencing judge stated that the appellant had been shown to have “a pathological disregard for the truth”.
Circumstances arising since the appellant was sentenced
The circumstances relied upon by the appellant in advancing the appeal are set out in the two affidavits to which I have referred.
Mr Press of counsel for the respondent objected to the tender of the affidavits. But he did not raise any objection to the Court having regard to their contents for the purpose of determining whether it was a proper case for the admission of what, for convenience, was described as “fresh evidence”.
The deponent Gerald Feltus is a detective senior sergeant of police attached to the Major Crime Investigation section of the police force. In that capacity, he had the conduct of the investigation into two murders.
The badly decomposed body of one victim was located in bushes in a suburban street in April 1999.
The remains of the body of the second victim were found in a dump in December 2001, four months after she had disappeared.
Subsequently, the offender (“M”), who was responsible for both murders, pleaded guilty to the crimes.
In August 2001, M was arrested at Whyalla and charged with a serious rape which had been committed a few days earlier. He was remanded in custody to the Port Augusta Gaol.
Shortly thereafter, M began to confide in the appellant and gave to him intimate details of his involvement in matters which the police were then investigating.
As a result of contact with the police initiated by the appellant, the appellant was interviewed at Port Augusta police station by Detective Brennan, to whom he gave a lengthy written statement.
In the course of that statement, he gave details of various conversations which he had with M, when M admitted to having committed the rape and the murders. The appellant furnished much circumstantial detail, previously unknown to the investigating police officers, as to both murders.
The appellant indicated that he was prepared to give evidence against M, if required.
In the events which happened, he was not called upon to do so, as M eventually pleaded guilty.
The deponent of the other affidavit, Mark Myers, is a Correctional Services officer stationed at Port Augusta. He is the case management co-ordinator of Port Augusta Gaol. Mr Myers also fulfils the role of operational manager of the protection unit at the goal. In that capacity, he has known the appellant as an inmate of the protection unit for about three years.
Mr Myer’s affidavit is confined to the effect upon the appellant’s incarceration of his assistance to the authorities.
Myers had some discussions with the appellant before the latter approached the police.
Mr Myers expresses the view that the appellant “will now never be safe outside protection”.
He goes on to explain the confined nature of the daily regime imposed upon prisoners held in protection. Protection prisoners are locked in their cells for about 21 hours a day, compared with 11 and a half hours in the case of mainstream prisoners.
Even while outside their cells, protected prisoners have limited opportunities for exercise, and are denied access to facilities available to mainstream prisoners, such as an oval, gymnasiums, a swimming pool and other facilities. Furthermore, protected prisoners are not allowed to mix with other prisoners, and have no evening activities, their cells being locked at 4.00 pm.
Protected prisoners are limited to one phone call a day, whereas mainstream prisoners may make numerous calls. Protected prisoners cannot visit the canteen, as is the case with mainstream prisoners, and their purchases are delivered to them in bags. Visiting rights for protected prisoners are more limited than is the case with other inmates.
According to Mr Myers, the appellant’s assistance to the police is “notorious” in the prison, and even within protection, he suffers insult and abuse. The appellant has regularly sought the advice of Mr Myers as to what new prisoners will be coming to the Port Augusta protection unit from Yatala Gaol, in case friends of M may be included.
According to Mr Myers, the appellant appears “genuinely frightened and anxious” during those discussions.
The arguments on appeal

Mr Braithwaite, who appeared for the appellant, put his argument in two slightly different ways.
In the first place, he submitted that had the sentencing judge been aware of the appellant’s subsequent co-operation with the police, this would have led to what he described as a “very significant” reduction in sentence.
The second line of argument advanced by Mr Braithwaite fastened on comments made by the sentencing judge during the course of his remarks on sentence, being matters as to which, Mr Braithwaite submitted, the sentencing judge would have taken a different view had he known of the subsequent conduct of the appellant in co-operating with the authorities.
The specific remarks made by the sentencing judge which were the focus of this part of Mr Braithwaite’s argument were as follows:
“Through your counsel you have now admitted your guilt, and I am told that you have apologised to your victims. I take that into account, but that does not undo the psychological harm which they have suffered and, it appears, will continue to suffer.
Your professed remorse I view with some cynicism. That is the same course that you followed after the last time you were convicted by a jury of armed robbery in somewhat similar circumstances. On that occasion, after denying your involvement at your trial, you were sentenced to nine years’ imprisonment, which, after remissions, resulted in an actual sentence of a little over 6 years. In support of a subsequent unsuccessful application for the fixing of a non-parole period in 1997, you then acknowledged your guilt and offered co-operation in identifying and bringing to justice your co-offenders. History suggests that you are only prepared to acknowledge your guilt when you perceive that that will result in some personal advantage to yourself.
.........
I have been supplied with a recent report of Mr Balfour, a psychologist. I am afraid I can place no weight on it. The opinions Mr Balfour has expressed are based on incomplete and misleading information.
............
There seems to be little doubt that you have become institutionalised. You have a history of unstable relationships with women. Your enigmatic gaol behaviour, between confrontational and obstructionist, on the one hand, and conformist and co-operative and a keen participant in study, work and sporting activities on the other hand, suggests that your behaviour upon release would continue to be unpredictable and erratic, and of doubtful trustworthiness.” (emphasis added)
As for the argument based on those passages in the sentencing judge’s remarks on sentence, in essence what Mr Braithwaite contended was that the judge would have taken a different view of the professed remorse of the appellant and of his prospects of rehabilitation had he been aware of what was soon after to ensue with respect to the appellant’s co-operation with the authorities.
In my opinion, that argument cannot be sustained. Evidence of the appellant’s subsequent co-operation with the authorities, even although it occurred soon after he was sentenced, does not provide a good reason to doubt the soundness of the observations made by the sentencing judge at the time he pronounced sentence.
The appellant’s co-operation with the authorities may well have simply been a reaction to the circumstances in which he then found himself, given that he had been sentenced to a long term of imprisonment, with a lengthy non-parole period. The appellant may well have thought at that time that he should take advantage of whatever opportunities might arise which might offer some prospect of an earlier release.
Fortuitously, an opportunity arose when M began to confide in him. The appellant’s utilisation of that development to his advantage is not something for which he should be criticised, notwithstanding the fact that his conduct in doing so was no doubt opportunistic.
But it is another matter entirely to reason from those circumstances that the sentencing judge must have been mistaken in approaching the appellant’s protestations of remorse with a degree of scepticism.
However, looking at the matter apart from the sentencing judge’s remarks, the argument that credit should nonetheless be given in some way for the appellant’s co-operation with the authorities is more cogent.
However serious the crime may be which brings an offender before the courts; however unpromising the prospects of rehabilitation; and however sceptical one may be as to the genuineness of expressions of remorse; the policy of the law is to allow a substantial discount in sentencing an offender where he or she has co-operated with the authorities. Such a discount should be given, whether the co-operation results in the apprehension of other offenders with respect to the particular crime in question, or with respect to other crimes.
The principle has been recognised in a number of authorities. See, for example, R v Nguyen[1] per King CJ, with whom Cox and Millhouse JJ agreed:[2]
“It is the policy and practice of the Courts to make a reduction in the sentence which would otherwise be imposed on an offender who has co-operated with the authorities to the extent of incriminating co-offenders or others who have committed crimes. This practice is firmly rooted in policy considerations. It does not depend upon the personal merits of the offender. It may be, of course, that the offender’s co-operation with the authorities is evidence of a change of heart and a determination to reform his life. Where that is so, the offender will ordinarily receive credit for his change of heart. But change of heart aside, an offender who is prepared to assist in the enforcement of the law by incriminating others receives a reduction in sentence as a reward for that conduct with the object of encouraging others to assist in law enforcement by implicating co-offenders and others who have committed crimes.”[3]
[1] (1989) 50 SASR 361.
[2] Ibid 362-363.
[3] See also Salameh (1991) 55 A Crim R 385, McGoohin (1986) 20 A Crim R 438, Golding (1980) 24 SASR 161, Binder and Anor (1989) 42 A Crim R 221, Bonnie (2003) 85 SASR 52, Tee (1993) 61 SASR 501, Many (1990) 51 A Crim R 54, Perez-Vargas and Anor (1987) 8 NSWLR 559, Malvaso (1989) 168 CLR 227 and Signorotto v Nicholson [1982] VR 413.
Almost without exception, the reported cases concern situations where the defendant’s co-operation with the authorities has preceded the sentencing.
Whether it is proper where the co-operation postdates the passing of the sentence, to reduce the sentence ex post facto on a subsequent appeal, requires a consideration of the principles which have been developed concerning the exercise of the jurisdiction to accept fresh evidence on appeal.
All appeals are statutory in origin. There is no right of appeal apart from a right conferred by statute.
Part 11, Division 3 of the Criminal Law Consolidation Act 1935 deals with appeals.
Within that division, s 353 and s 359 are relevant.
Part of s 353 is as follows:
“353(1) ………….
(4)Subject to subsection (5), on an appeal against sentence, the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and in any other case shall dismiss the appeal.
(5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.”
Section 359 of the Act appears under the heading “Supplemental Powers of Court”. The section is of application both to appeals against conviction and appeals against sentence. Part of the section is in the following terms:
“359.For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice-
(a)........
(b)order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Supreme Court or before any officer of the Supreme Court or justice of the peace or other person appointed by the Full Court for the purpose, and allow the admission of any depositions so taken as evidence before the Full Court; and
(c)receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with such consent; and
(d)........
(e)........
(f)exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters; and
(g)........”
Despite the generality of the opening words of s 359, certain principles have been developed by the Court as to the exercise of the powers conferred by it.
The relevant principles were referred to in R v Dorning.[4] In that case, the appellant, who had been sentenced to imprisonment, made an almost successful attempt on his own life while in gaol, and had otherwise demonstrated what was described as “extreme despair and depression” which, according to psychiatric evidence, made it “highly probable that his mental state would again deteriorate if the applicant’s attitude to his punishment continued”.[5]
[4] (1981) 27 SASR 481.
[5] Ibid at 485.
In the course of their joint judgment, Walters, Zelling and Williams JJ said:[6]
“There is no doubt that in the proper case the Full Court has power to permit fresh evidence to be called before it. This is because s 359(a) of the Criminal Law Consolidation Act 1935, as amended, provides that for the purposes of the Act the Full Court may, if it thinks it necessary or expedient in the interests of justice, order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial. In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible, ... It was pointed out in In re van Beelen[7] that applications under s 359 to lead fresh evidence are never lightly granted.”
[6] Ibid 485-486
[7] (1974) 9 SASR 163 at 188.
There is authority for the proposition that at least in the case of appeals against sentence, the so called “fresh evidence” rules do not necessarily apply. In that context, reference may be made to Knights,[8] which concerned a situation where the appellant’s counsel failed to put before the sentencing judge evidence which was at that time available as to assistance given by the appellant to the police in their investigation of other crimes. In the course of his judgment, with which Marks and Harpel JJ concurred, Crockett J said:[9]
“Although the evidence which Gibson [a sergeant of police] was able to give does not qualify under the fresh evidence rule for admission before this Court because of its non-conformity with the rules which allow so-called fresh evidence to be placed before an appellate court, that does not mean, as I think the Crown conceded, that this Court could not receive the evidence and act upon such reception.”
[8] (1993) 70 A Crim R 105 (Court of Criminal Appeal, Victoria). See also Mariadis (infra).
[9] Ibid 110.
At all events, the traditional statement of the “fresh evidence” rule is more commonly of application in cases where the evidence was in existence at the time of the trial, but was made known to the party or the party’s advisers subsequent to the trial.
In the case of evidence as to facts not in existence at the time of the trial, the first of the three conditions referred to in Dorning (supra) would always be satisfied.
But in the case of appeals against sentence, the courts have, in addition to applying the above principles, generally declined to accept evidence of events occurring after sentence, except perhaps where those events throw a new light on facts found or assumed by the sentencing court.
In that respect, the following observation was made by the court in Dorning (supra):[10]
“… basically, the task of the Court of Criminal Appeal is to see whether the trial Judge went wrong on the material before him. We acknowledge, of course, the power of the Court of Criminal Appeal to permit fresh evidence to be called in a proper case. But in an appeal against sentence we do not regard it as generally appropriate to allow an appellant to call evidence to show that he has a marked psychological reaction to the sentence of imprisonment, even though that reaction could not have been foreseen. To allow such evidence as a matter of course might, we think, result in the Court of Criminal Appeal being called upon to review every heavy sentence of imprisonment to which the person upon whom it was imposed reacted with some degree of chock. As the Full Court pointed out in McDougall v Betts,[11] this is an inevitable consequence of the penal system.” (emphasis added)
[10] 27 SASR 488-489
[11] (1979) 21 SASR 424.
In R v Smith,[12] information as to the medical condition of the appellant, more particularly as to the fact that he had been diagnosed with AIDS, was before the sentencing judge.
[12] (1987) 44 SASR 587.
After the appellant had been sentenced to imprisonment, further tests indicated that the disease had progressed to a more advanced stage than had been thought to be the case. Furthermore, there was a substantial risk that the stress associated with further imprisonment would cause further deterioration.
The court allowed evidence to be admitted on appeal as to those matters, and allowed the appeal for the purpose of reducing the non-parole period. In the course of his judgment, King CJ, with whom Cox and O’Loughlin JJ agreed, made the following observations:[13]
“The task of the Court of Criminal Appeal, speaking generally, is to see whether the trial judge went wrong on the material before him. …. 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[14] 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.”
[13] Ibid 588.
[14] (1982) 31 SASR 129.
In R v O’Shea (supra), the Full Court addressed the question whether, on an appeal against sentence, the Court of Criminal Appeal might have regard to events happening after the sentence was passed.
In that case, Wells J, with whom Walters and Matheson JJ agreed, said:[15]
“…. Appeals against sentence in this Court [the Court of Criminal Appeal] must be dealt with upon the basis of the facts properly before the sentencing court at the time. If fresh evidence is to be received, it may be received only in pursuance of the principles governing the reception of such evidence …”
[15] (1982) 31 SASR 144.
In R v Brain,[16] Doyle CJ, with whose judgment Bleby and Wicks JJ concurred, said:
“On an appeal against sentence the court may receive fresh evidence if that evidence puts before the court facts which existed when the sentence was passed, but were not known to the sentencing judge. …..”[17]
[16] (1999) 74 SASR 92.
[17] Ibid 104, par 86, citing Smith (supra).
Other cases which support the view that, generally speaking, on an appeal against sentence the court confines itself to evidence of the facts which existed at the time the sentence was passed, or which put such facts in a new light, are Amuso,[18] Best,[19] PFD[20] and Maniadis.[21]
[18] (1987) 32 A Crim R 308 (CCA, South Australia).
[19] (1998) 100 A Crim R 127 (Court of Appeal, Victoria).
[20] (2001) 124 A Crim R 418 (Court of Appeal, Victoria).
[21] (1997) 1 Qd R 593 (Court of Appeal, Queensland).
In the last mentioned case, in their joint judgment, Davies JA and Helman J said, after referring to the traditional formulation of the test for the admission of fresh evidence:[22]
“But a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh in the above sense, if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive.[23] Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed.[24]
There will no doubt be cases in which, notwithstanding that, if such evidence were admitted some other sentence would be warranted, the evidence should nevertheless be excluded. Where the evidence was known to the appellant at the sentence hearing and deliberately withheld, that will generally be so.
However we would not agree with the majority of the New South Wales Court of Criminal Appeal in Goodwin[25] that, for such evidence to be admissible on appeal, two conditions which must always be satisfied are that, if the existence of the evidence is known to the appellant, its significance was not realised by him and that its existence was not known to the appellant’s legal advisers at the time of the sentence hearing. No doubt where those conditions are absent such evidence will usually be excluded but that may not always be so. In the end, the reception of such evidence will depend on whether, if it were excluded, there would be a miscarriage of justice; and it would be undesirable, in our view, to state in advance those matters which, in every case, must be proved in order to establish such a miscarriage.” (emphasis added)
[22] Ibid at 595.
[23] Cf Knights (1993) 70 A Crim R 105.
[24] As in R v M [1996] 1 Qd R 650; R v Smith (1987) 44 SASR 587; Jones (1993) 70 A Crim R 449. Evidence of subsequent sentences imposed on co-offenders appears to be an exception to the general proposition; and query Greer v The Queen referred to in Gavin v The Queen (1991) 6 WAR 195 at 208.
[25] (1990) 51 A Crim R 328.
In the decision of the Court of Appeal of Victoria in Babic,[26] it was said that evidence of events occurring after sentence was inadmissible. In that case, Brooking JA, with whom Winneke P and Ashley AJA concurred, said:[27]
“The present case concerns evidence of events after sentence. Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible.
The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court: .”
[26] [1998] 2 VR 79.
[27] Ibid 80.

However, in two other Victorian authorities a different approach was adopted.
In Mitchell,[28] decided about two years after Babic, Tadgell JA, sitting in the Court of Appeal of Victoria, said in the course of his judgment, with which Chernov JA and Headigan AJA agreed:[29]
“22…. “There is no doubt, it seems, that the applicant’s medical condition is a parlous one. He suffers from hypertension, ischaemic heart disease, atrial fibrillation, cardiac failure, a type of diabetes, oesophagitis and duodenitis, depression, impairment of hearing, carcinoma of the prostate and chronic obstructive airways disease.
23The judge took these matters into account, and that catalogue no doubt contributed to what must be regarded as a relatively lenient sentence he imposed. There is an indication, however - and this was not seriously resisted by the Crown, though it has not been stated on oath - from Dr Tim Lightfoot, a specialist physician, that renal dysfunction has supervened in the applicant, the effect of which, to summarise it, is that the likelihood, by way of a significant probability, is that his life expectancy has reduced from up to three years at the time of sentence to about 12 months at present. We were invited to exercise some mercy by way of allowing an extra ground, in effect that the applicant’s health has seriously deteriorated since the sentence was passed, leading to a reduction of his life expectancy and rendering the sentence passed inappropriate.
24The court is of opinion that this is a case in which to exercise mercy of that kind, and there is good authority for it in cases such as Rostom,[30] Eliasen[31] and Williams.[32] It is not a matter, I think, of saying that the judge was wrong in what he did. It is not necessary that we should find that the judge erred in his sentencing discretion. The question, upon a ground like this as reformulated or added, is whether this Court can be satisfied that, on the material now before it, a different sentence should be substituted for that passed by the sentencing judge.” (emphasis added)
[28] (2000) 112 A Crim R 315.
[29] Ibid 321-322, par 22-par 24.
[30] [1995] 2 VR 97; (1995) 83 A Crim R 58.
[31] (1991) 53 A Crim R 391.
[32] Unreported, Court of Appeal, Victoria, No 153 of 1995, 18 September 1995.
In Prideaux,[33] the applicant, who applied for leave to appeal against his sentence for armed robbery and using a firearm to avoid arrest, contended, inter alia, that the sentence should be reduced on account of the fact that after sentence he had become a police informer. That is similar to the circumstances of this case. Furthermore, the relevant section of the Crimes Act 1958 (VIC) is in substantially similar terms to s 353(4) of the Criminal Law Consolidation Act.
[33] (1988) 36 A Crim R 116 (Court of Criminal Appeal of Victoria).
The Victorian provision is set out at the commencement of the following passage from the judgment of Crockett ACJ:[34]
“Section 568(4) of the Crimes Act 1958 (Vic) states:
‘On an appeal against sentence the Full Court shall, if it thinks that a different sentence should have been passed or a different order made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed or made, and in any other case shall dismiss the appeal.’
From a literal reading of that subsection, it would appear that the matter is concluded against an applicant if the court is of the view that no different sentence should have been passed at the time that the sentence was, in fact, imposed. That clearly is the view which I would entertain in relation to the present matter, for the reasons I have already indicated.
The question would thus be whether some broader interpretation of the subsection should be entertained in order to allow the court to interfere in the event that subsequent to the passing of the sentence by the trial judge there have come into existence new facts and circumstances which the appellate court thought were relevant to the question of sentence.
It appears that in Bruzzese,[35] this Court took the view that though an appeal against sentence raises the question of the propriety of the sentence in the light of the facts as known by the sentencing judge, evidence dealing with events subsequent to the passing of that sentence, especially where it deals with possibilities which have become actualities subsequent to the date of sentence, may be admitted.
It may therefore be that, on the authority of that decision, this Court can properly admit the two statutory declarations in question.”
[34] Ibid 116.
[35] Unreported, Court of Criminal Appeal of Victoria, 8 December 1982.
Crockett ACJ goes on to refer to the fact that in any event the DPP in that case did not oppose the tender of the relevant evidence. However, in the result, the application failed, as the court took the view that it was not possible on the material which had been placed before it for the worth of the information which the applicant had been prepared to give to the authorities, to be evaluated.
Standing back and taking a broad view of the authorities, it is evident that the courts’ reluctance to receive on an appeal against sentence evidence of circumstances arising after the sentence was passed, has been expressed with varying degrees of emphasis. While it is true that some of the authorities are expressed in terms suggesting that such evidence will never be received unless it serves to throw new light on facts existing at the time of sentencing, in my view, to express the approach in such terms goes too far.
Pursuant to s 359, the discretion to receive fresh evidence is conditioned only by the words “if … [the court] thinks it necessary or expedient in the interests of justice”. It is undesirable to attempt to circumscribe the limits within which the discretion may be exercised by adopting a rigid formula.
Examples where the interests of justice might entitle the court to receive evidence of events arising after sentence are cases where it is suggested that the subsequent sentencing of a co-offender is disproportionate to the sentence previously passed upon the appellant.
The court would also be justified in reviewing a sentence in circumstances where the defendant subsequently fails to honour an undertaking to give evidence against a co-offender.
R v J[36] is such a case. Upon being sentenced on four counts of armed robbery, with six other similar offences taken into account, the respondent was given credit by the sentencing judge for his undertaking to give evidence against five alleged co-offenders.
[36] (1992-1993) 59 SASR 145.
After he had been sentenced, the respondent refused to testify against them. On an approach by the Crown, his sentence was increased.
In the course of his judgment, King CJ, with whom Mullighan J concurred, said:[37]
“I agree that this Court has power to receive evidence of events occurring subsequent to sentence which have the effect of falsifying the basis upon which sentence has been imposed. It is a power to be exercised sparingly and with great circumspection. Ordinarily the Court of Criminal Appeal is concerned only with the question whether the sentence was correct on the information before the sentencing judge. It may nevertheless in exceptional circumstances vary a sentence in the light of events subsequently occurring.” (emphasis added)
[37] Ibid 147.
The conclusion which I draw from the authorities is that on a proper construction of s 353 and s 359 of the Act, ordinarily, on an appeal against sentence, the court will confine itself to the question whether or not the sentence was justified on the material before the sentencing judge at the time sentence was passed.
However, in exceptional cases, reference may be made on such an appeal to facts which have arisen after the sentence was passed. Commonly, such a course will be permitted where subsequent events have thrown fresh light upon the circumstances existing at the time of the imposition of the sentence. Rare cases may arise where it is proper for the court to reconsider the sentence in light of new facts subsequently arising, not answering that description.
In any case involving the suggestion that circumstances have arisen which would justify a reconsideration of the sentence, the power to do so should be exercised “sparingly and with great circumspection”.[38]
[38] R v J (supra) per King CJ at 147.
The more usual course in such cases is to allow the matter to be dealt with on a petition for mercy.[39]
[39] See s 369 of the Act.
Indeed, the Court was informed that the appellant had lodged such a petition in this case, but that its consideration had been deferred pending the outcome of the appeal.
In my view, this is an exceptional case, where the Court should be prepared to re-visit the sentence imposed upon the appellant. Factors which lead me to that view include the fact that the information given by the appellant to the police was clearly of considerable assistance to them; that the assistance was given very soon after the appellant was sentenced; and the assistance rendered by the appellant has exposed him to a much harsher regime in prison, and seriously jeopardised his personal safety.
In the unusual circumstances of the case, I think it proper that rather than allow the matter to be dealt with by the Executive on the appellant’s petition for mercy, it is better that this Court review the sentence and give such credit as is appropriate against the sentence which was imposed.
A question arises as to our power to receive in evidence the affidavits of Mr Feltus and Mr Myers.
Strictly, s 359(b) of the Act would only permit the oral examination before the court or a judge or officer of the court of witnesses falling within the description contained in the subsection. On the face of it, the subsection would not permit the receipt of affidavit evidence.
However, s 359(f) of the Act enables the Full Court (sitting as the Court of Criminal Appeal) to exercise any other powers which may be exercised “by the Supreme Court on appeals or applications in civil matters”. Although the subsection does not refer specifically to the Full Court, I assume that what is being referred to are the powers of the Full Court in civil matters, rather than the powers exercised by the Supreme Court in hearing appeals other than those dealt with in the Full Court.
At all events, SCR r 95.15(b) provides that the Full Court, when hearing an appeal in a civil case, “may in its discretion receive further evidence upon any question of fact”.
In the exercise of the power conferred by that rule, the Full Court may receive evidence in the form of affidavits. Indeed, it regularly does so.
Accordingly, this Court may receive evidence in that form when it is otherwise appropriate.
In all the circumstances, I would:
1.        Receive in evidence the affidavits of Gerald Michael Feltus and Mark Myers;
2.        Allow the appeal and quash the sentence under appeal.
3.        Substitute a sentence of 7 years and 6 months imprisonment with a non-parole period of 6 years, both to commence from 6 November 1999.
WHITE J: I have read the reasons prepared by the Chief Justice and Perry J.
I agree with the order proposed by the Chief Justice for the outcome of this appeal, and with his reasons for that order.
Further, like Doyle CJ, I agree that a reduction in the sentence, of the order proposed by Perry J, is appropriate. Whether or not a reduction to that extent (or any other extent) is to be made is a matter for Her Excellency The Governor exercising the prerogative of mercy.
There is nothing else I wish to add.