R v CORBO

[2015] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CORBO

[2015] SASCFC 80

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)

3 June 2015

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - ILLNESS OR PHYSICAL DISABILITY

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

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

The appellant has appealed against a sentence imposed following pleas of guilty to the offences of cultivating a commercial quantity of a controlled plant, possessing prescribed equipment and diverting electricity from a power system.  The appellant was sentenced in the Magistrates Court to a term of 14 months imprisonment with a non-parole period of six months.  The Magistrate declined to suspend the sentence but granted the appellant bail pending an appeal to this court.  The appellant's notice of appeal raised two grounds: the sentence is manifestly excessive and the Magistrate erred in not exercising the discretion to suspend.

However, following the filing of his appeal, the appellant was diagnosed with malignant mesothelioma with a poor prognosis. At the appeal the appellant sought to place before the Court fresh evidence detailing his diagnosis and consequent life expectancy. Receipt of that evidence was not opposed by counsel for the Director of Public Prosecutions, who also conceded that if the fresh evidence were to be admitted, good reason to suspend would be made out. An order to that effect was made at the conclusion of the appeal hearing.

Held by the Court, allowing the appeal:

1.  The fresh evidence relied on by the appellant is received.

2.  Upon review of all materials now available and relevant to sentence, including the evidence concerning the appellant’s medical condition, there is now good reason to suspend the prison sentence imposed by the Magistrate.

Criminal Law (Sentencing) Act 1988 s38; Controlled Substances Act 1984 (SA) s33B, s33LA; Electricity Act 1996 s85; Summary Procedure Act 1921 s108; Magistrates Court Act 1991 s42, referred to.
Noble v Police [2014] SASC 156; R v Lepore [2013] SASCFC 13; R v Kikidis (2012) 112 SASR 148; R v Dorning (1981) 27 SASR 481; R v Gilby [2012] SASCFC 94; R v Smith (1987) 44 SASR 587; R v McIntee (1985) 38 SASR 432, considered.

R v CORBO
[2015] SASCFC 80

Court of Criminal Appeal:   Gray, Peek and Nicholson JJ

THE COURT

Introduction

1. On 19 May 2015, the Court allowed this appeal against sentence. The term of imprisonment imposed by the sentencing Magistrate was confirmed. However, contrary to the position taken by the Magistrate, this Court, exercising the discretion available pursuant to section 38(1) of the Criminal Law (Sentencing) Act 1988, suspended the sentence upon the appellant agreeing to a bond to be of good behaviour for three years. These are the Court’s reasons.

2. On 18 September 2014, the appellant pleaded guilty to the offences of cultivating a commercial quantity of a controlled plant,[1] possessing prescribed equipment[2] and diverting electricity from a power system.[3]

   [1]    Controlled Substances Act 1984 (SA) s33B(2) (maximum penalty a fine of $200,000 or imprisonment for 25 years or both).

   [2]    Controlled Substances Act 1984 (SA) s33LA (maximum penalty a fine of $10,000 or imprisonment for 2 years or both).

   [3]    Electricity Act 1996 (SA) s85(1) (maximum penalty a fine of $20,000 or imprisonment for 2 years).

3. In brief, the circumstances of the offending were that the appellant had constructed two rooms in his garage in which he grew cannabis plants.  When the police attended, six mature plants were being grown hydroponically, a further 16 smaller plants were being grown hydroponically and a single plant was found in a plastic bucket.  The police also found 160 grams of dried cannabis.  In addition, the police found and seized ballasts, light fittings, heat boxes, lights, carbon filters, globes, a power board, brass pipes and scales.  The electricity meter box had been interfered with so as to permit the electricity extracted to by-pass the meter.

4. The appellant was sentenced in the Magistrates Court[4] to imprisonment for 14 months with a non-parole period of six months.  The Magistrate declined to suspend the sentence of imprisonment.  However, on the day of sentencing the appellant was granted bail pending an appeal to this Court.

   [4]    Pursuant to s108(1) of the Summary Procedure Act 1921, where a defendant pleads guilty to a major indictable offence or to offences that include a major indictable offence, the Director of Public Prosecutions and the defendant may consent to the defendant being sentenced in the Magistrates Court. The offence of cultivating a commercial quantity of a controlled plant is a major indictable offence and the parties so consented. In these circumstances, any appeal or application for permission to appeal lies directly to the Full Court, s42(2)(ab) of the Magistrates Court Act 1991 and see Noble v Police [2014] SASC 156 at [12].

   The appeal

5. Originally, the appellant appealed on two grounds: that the sentence imposed was manifestly excessive and that the Magistrate erred in not exercising the discretion to suspend.  As events transpired, it was unnecessary at the hearing of the appeal to examine whether or not the Magistrate had erred in either of these two respects. 

6. After the notice of appeal was filed, various medical investigations were undertaken.  In February 2015, the appellant was diagnosed for the first time with malignant mesothelioma.  Following further investigations, the opinion was expressed by his treating oncologist that the mortality rate for his condition was considered to be about 60 per cent over one year but that if the appellant were to respond to the proposed treatment regime, survival might be prolonged by an average of ten to 12 months.  According to the treating oncologist, the condition is not curable and chemotherapy is provided as a palliative option and in order to control the speed of its inevitable progression. 

7. As a consequence, the appellant sought to place relevant medical reports before the Court as fresh evidence.  Counsel for the Director of Public Prosecutions, quite properly with respect, conceded that this proposed new evidence was to be characterised as fresh evidence.  It undoubtedly satisfies the requirements for fresh evidence as explained in the relevant authorities.[5]  As counsel for the Director conceded in her written submissions:

   It is submitted that the fresh evidence as to the appellant’s malignant mesothelioma should be admitted on the basis that it will inform the appeal court of facts which were in existence at the time that the sentence was imposed but were unknown to the sentencing Judge. The respondent concedes that the evidence could not have been obtained with reasonable diligence for use at sentencing, that the evidence is credible and it would probably have an important influence on the result of the case.

   [5]    See, for example, R v Lepore [2013] SASCFC 13 at [23]-[26]; R v Kikidis (2012) 112 SASR 148 at [25]; R v Dorning (1981) 27 SASR 481 at 486; R v Gilby [2012] SASCFC 94; R v Smith (1987) 44 SASR 587 at 588; R v McIntee (1985) 38 SASR 432 at 435.

8. For these reasons the Court agreed to receive, as fresh evidence, the appellant’s evidence concerning his diagnosis of malignant mesothelioma and concerning his life expectancy.

9. The appellant is a 60 year old family man with no prior criminal record of any real significance.  The Magistrate outlined a significant number of factors personal to the appellant which pointed strongly to a favourable exercise of the discretion to suspend.  However, the Magistrate was also conscious of the seriousness of the offending, the fact that it had a commercial aspect to it and the requirements of personal and general deterrence.  Ultimately, the Magistrate was not satisfied that there was good reason to suspend.

10. We have little doubt that had the fresh evidence been before the Magistrate, his Honour would have found good reason and suspended the prison sentence.  In any event, the Court took the view that the fresh evidence should be admitted on the appeal.  As such, it became a matter for the Court to exercise the discretion afresh whether or not to suspend and on the basis of all of the evidence that was before it.

11. On our review of all the materials now available and relevant to sentence, we were satisfied that there was good reason to suspend the prison sentence imposed by the Magistrate.  As a consequence, an order to that effect was made at the conclusion of the appeal hearing.  However, we note that counsel for the Director, again quite properly, conceded that once the fresh evidence concerning the appellant’s illness and life expectancy were admitted, good reason to suspend would be made out.