R v Clark

[2014] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CLARK

[2014] SASCFC 104

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Bampton)

24 September 2014

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - HARDSHIP - TO OTHERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

Appeal against decision to impose an immediate custodial sentence – appellant pleaded guilty to criminal trespass in a place of residence and aggravated recklessly causing serious harm – appellant was primary carer for her autistic daughter and her mother – whether effect of custodial sentence on dependants was taken into account – whether fresh evidence should be received in relation to the effect on dependants – whether sentencing Judge erred in declining to suspend the sentence.

Held: No error identified – Judge properly took into account the issue of hardship to dependants – appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 170A(1), s 23(3); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n), referred to.
R v Penno [2004] SASC 354; R v Wirth (1976) 14 SASR 291; R v Adami (1989) 51 SASR 229; Neill v Police [1999] SASC 270, considered.

R v CLARK
[2014] SASCFC 104

Court of Criminal Appeal: Peek, Blue and Bampton JJ

1. PEEK J:   I would dismiss the appeal.  I agree with the reasons of Bampton J.

2. BLUE J:   I agree with Bampton J.

3. BAMPTON J:      The appellant, Ms Clark, pleaded guilty to one count of criminal trespass in a place of residence and one count of aggravated recklessly causing serious harm contrary to section 170A(1) and section 23(3) of the Criminal Law Consolidation Act 1935 (SA) respectively.

4. The maximum penalty for criminal trespass in a place of residence is imprisonment for three years.  The maximum penalty for aggravated recklessly causing serious harm is imprisonment for 19 years.

5. Ms Clark was sentenced to imprisonment for three years and four months with a non-parole period of 18 months.[1]  The sentencing Judge declined to suspend the sentence.

   [1]    The endorsement records that a head sentence of imprisonment for three years and four months and a non-parole period of 18 months was imposed.  The sentencing Judge has confirmed that his sentencing remarks incorrectly refer to a head sentence of imprisonment for three years.

6. Ms Clark appeals by permission against the sentence on the ground that it is manifestly excessive and in particular that the sentencing Judge erred in not suspending the sentence of imprisonment.

   The offending

7. Ms Clark had been in a relationship with Mr Gee.  The relationship was marked by domestic violence and Ms Clark eventually sought, and was granted, a restraining order against Mr Gee. 

8. Early in the morning of 8 June 2012, Ms Clark received a phone call from the Holden Hill police station advising that Mr Gee had been arrested and bailed with respect to unrelated offences.  Ms Clark formed the belief that her details had somehow been involved in that matter.  This caused her significant concern and she immediately attended at Mr Gee’s house to confront him about it.  She entered Mr Gee’s home without his consent and found his bedroom door locked.  She armed herself with a long bladed knife from the kitchen and demanded to be let in.  Upon Mr Gee opening the door, she saw a woman she did not know in the bedroom.  The woman was hiding behind the door which was opened by Mr Gee.  Upon seeing the woman, Ms Clark called her a slut.  She raised the knife she was holding above her shoulder.  Both the woman and Mr Gee begged her not to stab the woman.  Despite their pleas, Ms Clark lunged forward and stabbed the victim once in the abdomen.  She then fled the house.  As she left, Mr Gee chased her and she called out that he “had better take the rap or he would never see his daughter again”.  Ms Clark then got into a car and drove away. 

9. As a result of the stabbing, the victim suffered a penetrating wound to the abdomen and associated lacerations to her liver and pancreas with significant bleeding.  She was conveyed by ambulance to the Royal Adelaide Hospital and underwent an emergency laparotomy.  Following the operation, she developed hospital-acquired pneumonia and a temporary pancreatic leak which resolved after nine days.  She spent a total of 10 days in hospital.  The injuries were potentially fatal without surgical intervention.  It is expected that she will eventually make a full physical recovery. 

10. In her Victim Impact Statement, the victim says that she has suffered psychologically from the incident and has been left with scarring which has made her self-conscious and impacted on her personal relationships.  She continues to experience intermittent abdominal pain but says she is too “scared” to go to the doctor. 

    The pleas of guilty and sentence

11. On 9 December 2013, Ms Clark pleaded guilty to a fresh Information filed by the Director of Public Prosecutions.  A disputed facts hearing regarding the circumstances of the causing serious harm offence was resolved on the day the matter was listed for hearing on 20 January 2014.  Ms Clark was sentenced on the factual basis described above.  The sentencing Judge began with a starting point of imprisonment for four years and two months which was reduced to three years and four months on account of the guilty pleas.  A non-parole period of 18 months was fixed. 

12. In his sentencing remarks, the Judge said that he had taken into account the impact that a sentence of imprisonment would have on Ms Clark’s four year old daughter, H.  He noted that in exceptional circumstances courts take such circumstances into account when imposing sentence.  He considered that in Ms Clark’s case it was appropriate to take into account the effect that imprisonment would have on her daughter and her wider family.  He noted that the impact on an offender’s family does not become the dominating factor; rather the true position is that the interest of the offender’s family may be given effect by reducing an otherwise appropriate sentence.  Having regard to Ms Clark’s personal circumstances and the needs of her daughter, he said that he imposed “a relatively low non-parole period”.

    Ms Clark’s personal circumstances

13. Ms Clark, who is aged 34, has a limited criminal history and no relevant prior convictions.  Ms Clark was assessed by a psychologist and two psychiatrists.  She has a diagnosis of borderline personality disorder secondary to her repeated physical, sexual and emotional abuse in her childhood and in her interpersonal adult relationships.  She suffers from depression, post-traumatic stress disorder and self-mutilation and has attempted suicide many times.  She has endured horrific physical and sexual abuse.  She has a history of repeated admissions to psychiatric wards.  She is prescribed anti-psychotic and anti‑depressive medication and requires ongoing psychological and psychiatric therapy.  She suffered a domestically violent relationship with Mr Gee who is H’s father.  She also has an 11 year old daughter from a previous relationship.  That daughter lives with her father in Tasmania.

14. Before being taken into custody, Ms Clark and H lived with Ms Clark’s mother, Rosalie Charlton, and had done so from the time H was eight months old.  Ms Clark had been separated from her mother at the age of 10 following her parents’ separation and reunited with her in adulthood.

15. Following the offending Ms Clark sought psychological counselling.  That counselling focused on affect regulation, improving sleep, managing depressive and anxious symptoms and developing ways to reduce the likelihood of self‑harm.

    Grounds of appeal

16. Ms Clark complains that the sentence is manifestly excessive and the sentencing Judge erred in failing to suspend the sentence.  She submits that the Judge should have given greater consideration to the effect of imprisonment on H, who has a diagnosis of autism.  Connected to the grounds of appeal is Ms Clark’s application that the Court take into account as fresh evidence an affidavit of Ms Clark’s mother, Mrs Charlton, sworn on 17 July 2014 and a contention that the Judge erred in failing to take into account a report from a consultant paediatrician, Dr Smiley, dated 9 May 2014.

17. It was not until the Judge had finished sentencing Ms Clark that the solicitor appearing for Ms Clark asked whether he had received Dr Smiley’s report.  The solicitor said that the report confirmed the diagnosis of autism.  Upon the Judge confirming the report had not been received by his chambers, his Honour said:

    I accept what you say.  It’s unfortunate the report was not given to me, but I accept the diagnosis of autism.  It doesn’t alter my sentence.

    It is not clear from the transcript whether the report was handed to the Judge or whether he read it before making this remark. 

18. Ms Clark complains that the Judge should have deferred completing the imposition of the sentence until he had read the report.  She argues that the sentencing discretion miscarried because the Judge was unable to fully take into account the impact of her imprisonment on her daughter.  The report is addressed to Ms Clark’s solicitors.  In the report, Dr Smiley refers to and encloses his report addressed to Dr Ricci also dated 9 May 2014.  The Judge was placed in a difficult situation.  He had already announced the sentence before he became aware of the report.  Nonetheless, if he did not in fact call for and read the report at that point, he ought to have done so before completing the imposition of the sentence.  However, even if the Judge did not read the report before completing the hearing, the report goes no further that confirming the submissions previously made to the Judge. 

19. Ms Clark tenders the affidavit of Mrs Charlton as fresh evidence for the purpose of proving the difficulties of caring for H.  Mrs Charlton’s affidavit goes no further than confirming the submissions previously made to the sentencing Judge concerning the difficulties in caring for H and the impact of Ms Clark’s imprisonment on H and her grandmother, who is tasked with caring for H in her mother’s absence.  Although it does not qualify for reception as fresh evidence, I have taken it into account in assessing whether the Judge erred in his treatment of the issues arising from the need to care for H if and while Ms Clark is imprisoned.

    Effect of custodial sentence on dependants

20. In determining a sentence, section 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA) mandates that the Court have regard to the probable effect the sentence would have on dependants of the defendant. Hardship will inevitably be suffered by those who depend on a defendant who is sentenced to an immediate term of imprisonment. However, the hardship suffered will only result in the reduction of an otherwise appropriate sentence in extreme and extraordinary circumstances.[2]  If the hardship is of such a serious character, a merciful approach is called for.

    [2]    R v Penno [2004] SASC 354, [46]; R v Wirth (1976) 14 SASR 291; R v Adami (1989) 51 SASR 229, Neill v Police [1999] SASC 270.

21. The sentencing Judge was supplied with a number of reports and supporting documentation during sentencing submissions which informed him about H’s provisional diagnosis of autism and her grandmother’s health issues.

22. Dr Smiley’s report confirms the diagnosis of autism.  In his report to Dr Ricci, Dr Smiley notes that H was delivered by emergency caesarean section following an episode of domestic violence.  He confirms that H has significant behavioural issues.  She also has toileting issues.  She sleeps for only a few hours at night and sleeps in her mother’s bed.  She often wakes screaming.  She has had significant separation anxiety in going to preschool.  Dr Smiley confirms that she heavily depends on her mother and, to a lesser degree, her grandmother. 

23. In the letter to the solicitors, Dr Smiley comments that H would be “very adversely affected in terms of her level of anxiety and ability to cope if she were not in her mother’s care”.  He says that he would expect that she “would find it much more difficult than another child of the same age if she was placed in foster care and that it would severely aggravate her condition”.

24. The matters detailed by Dr Smiley had already been identified in the material put before the sentencing Judge during sentencing submissions.  In particular, H’s significant behavioural issues were identified in the report prepared by Dr Poole, a Community Child Health Medical Officer with the Gordon McKay Child Development Unit.  Dr Poole was unable to complete a developmental assessment of H on 20 December 2012 due to H’s non compliance.  In her report, she notes that H has had significant behavioural issues since she was a baby.  Dr Poole also describes the types of behavioural difficulties that are deposed to in Mrs Charlton’s affidavit. 

25. Mrs Charlton’s affidavit confirms the significant difficulties associated with caring for H.  It also confirms the evidence that was before the Judge regarding Mrs Charlton’s many medical conditions.  The report of the cardiologist, Professor Horowitz, exhibited to the affidavit, confirms that Mrs Charlton suffers slow coronary flow and a predisposition to angina attacks.  She also suffers hepatitis C and diabetes.  Professor Horowitz comments that the diabetes “is poorly controlled at present because of all the turmoil in her life”.  Details of Mrs Charlton’s ill health were already before the sentencing Judge evidenced by his specific reference to them in his remarks. 

26. The difficulties experienced by Mrs Charlton in caring for H should not be underestimated.  Mrs Charlton deposes to initially thinking she could care for H and now finding that it is more difficult than she imagined.  She lives under the same roof as her alcoholic husband from whom she is separated.  She has her own medical issues with which to contend.  She has a daughter in prison and must care for that daughter’s autistic child.  The hardship suffered in caring for H and managing her behavioural issues is compounded by the grief H suffers due to her mother’s absence.

27. It is clear by reference to the transcript of the sentencing submissions, which took place over four hearings, that the main focus of those submissions related to the effect imprisonment would have on H.  Preliminary assessments of H had identified that she suffered from autistic traits.  The sentencing Judge was urged to impose a merciful sentence on the basis that any incarceration of her mother would cause exceptional hardship to H because of her diagnosis.  It was submitted that Mrs Charlton was the only person who could care for H but that her ill health would make this very difficult.  It was noted that Ms Clark, in addition to mothering H, was also Mrs Charlton’s carer. 

28. It is abundantly clear that the Judge was concerned about the hardship to H and her grandmother if Ms Clark was incarcerated.  He was well aware that H lived in a house with a chronic alcoholic and that her primary carer would be her chronically ill grandmother.  The submissions were adjourned to allow an opportunity to obtain further information in relation to H’s condition, Mrs Charlton’s health, and suitable carers for H in the event of a custodial sentence.  Medical reports and records relating to Mrs Charlton, medical records and reports relating to H, affidavits of family members and friends, and reports concerning Ms Clark’s mental health were provided to the Court.  The Judge accepted H’s provisional diagnosis of autism and took into account the impact imprisonment would have on her and the wider family. 

    Sentencing principles and the discretion to suspend

29. This Court will only interfere with a sentence if there is express or implied error.

30. There was no error in the Judge’s approach to the issue of the hardship to H and Mrs Charlton.  He specifically had regard to this issue.  The Judge sentenced Ms Clark on the basis that her offending was serious and warranted condign punishment.  The offending involved a trespass into a residence in the early hours of the morning while the occupants were sleeping and a violent, unprovoked, life threatening attack.

31. It is clear from the sentencing remarks that the Judge took into account Ms Clark’s early pleas, her contrition and remorse, her personal circumstances including her mental health issues, treatment and prognosis, her lack of relevant criminal history, and the hardship imprisonment would cause her daughter and her mother.  Having regard to the seriousness of offending, it was open, notwithstanding the circumstances affecting H and Mrs Charlton, to the Judge to impose a relatively low non-parole period as opposed to suspending the sentence.

32. No error has been demonstrated.  I would dismiss the appeal.