R v Cunningham

[2017] SASCFC 30

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CUNNINGHAM

[2017] SASCFC 30

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

13 April 2017

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - DEFERRAL OF AND REMAND FOR SENTENCE

Appeal against sentence. The appellant was sentenced in the District Court with respect to seven offences committed between 6 July 2014 and 6 January 2016, including possession of a controlled drug, theft, drive under disqualification, drive unregistered and drive uninsured. As a consequence of some of this offending, the appellant breached a suspended sentence bond entered into on 12 July 2013. The bond related to an offence of aggravated robbery committed in 2012 for which she had been sentenced to four years imprisonment with a non-parole period of two years and three months, which was suspended.

In sentencing, the Judge revoked the suspended sentence bond and ordered that the appellant serve the sentence for the aggravated robbery. The appellant was sentenced for each of the seven offences separately. However, after making orders for concurrency and accumulation a total period of six months imprisonment was ordered to be served cumulatively on the head sentence of four years imprisonment following revocation of the suspended sentence bond. As such, the appellant’s overall head sentence amounted to four years and six months imprisonment. The judge fixed a new non-parole period of two years and six months.

The appellant appealed on five grounds including that the Judge erred in not making an order allowing for an extended remand prior to sentencing, pursuant to section 19B of the Criminal Law (Sentencing) Act 1988.

At the hearing of the appeal, the appellant applied to adduce fresh evidence in the form of an affidavit by the appellant’s mother with respect to the care of the appellant’s child. It was submitted that this was relevant to the question of whether an extended remand pursuant to section 19B of the Criminal Law (Sentencing) Act 1988 should have been or should now be made.

Held per Nicholson J (Kourakis CJ and Parker J agreeing):

1.  The affidavit evidence was admissible as fresh evidence on the appeal and should be received.

2.  Permission to appeal on ground 1 is granted and the appeal is allowed.

3.  The District Court sentence is set aside.

4.  The appellant is remanded on home detention bail on strict conditions until 5 September 2017.

Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 19B, s 57, s 58; Criminal Law Consolidation Act 1935 (SA) s 352; Magistrates Court Act 1991 (SA) s 22, s 42, referred to.
R v Kikidis [2012] SASCFC 3; Griffiths v The Queen (1977) 137 CLR 293, [1977] HCA 44; R v Allen [2002] SASC 98, (2002) 81 SASR 434; Tarasenko v Boylan (1992) 58 SASR 587; R v Wilson [2016] SASCFC 139; R v Gibbs [2004] SASC 187, (2004) 89 SASR 30; R v Capalbo [2005] SASC 47; R v Kartinyeri [2016] SASCFC 20; R v Smith (1987) 44 SASR 587; R v Constant [2016] SASCFC 87, (2016) 126 SASR 1, considered.

R v CUNNINGHAM
[2017] SASCFC 30

Court of Criminal Appeal:   Kourakis CJ, Nicholson and Parker JJ

KOURAKIS CJ.

1. I joined in the orders of this Court made on 8 March 2017 for the reasons given by Nicholson J.

2. I make two additional observations.  First the full weight of the burdens of caring for A were not appreciated by the appellant’s mother until after the appellant was sentenced.  Neither the severe disabilities suffered by A nor the enormity of the job of caring for A could have been within the contemplation of the Judge at the time of sentencing.  The affidavit of the appellant’s mother was therefore properly admissible.[1]

   [1]    R v Kikidis [2012] SASCFC 3 at [29].

3. Secondly I wish to emphasise that the welfare of the dependent children of an offender is always an important sentencing consideration.  Its importance lies in the public interest in ensuring the welfare of all children but often the competing public interest in community protection, punishment and deterrence precludes sentencing options which optimise the welfare of dependent children.  In the special circumstances of this case the public interest in the provision of home based care for A, and the unique opportunity that presents to the appellant to reset her life’s direction through a caring relationship with A, warrants a deferral of the appellant’s sentence.

   NICHOLSON J.        

   Introduction

4. On 19 August 2016, Skye Anne Elizabeth Cunningham (the appellant) was sentenced in the District Court to imprisonment for four years and six months with a non-parole period of two years and six months backdated to commence 5 August 2016, being the date the appellant had been taken into custody. 

5. Before this Court the appellant relied on five grounds of appeal, only one of which needs to be dealt with in any detail. Appeal ground 1, for which permission was required, was to the effect that the sentencing Judge erred in proceeding to sentence the appellant rather than allowing her application that she first be remanded on bail pursuant to section 19B of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).[2]

   [2]    Referred to at common law as a Griffiths remand, Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44.

6. On 8 March 2017, this Court made orders allowing the appeal,[3] setting aside the District Court sentences and remanding the appellant on home detention bail for approximately six months with strict conditions and with a view to her returning before the Court for resentencing at the expiration of the remand.  These are my reasons for joining in the orders of the Court.

   [3]    And implicitly granting permission to appeal with respect to appeal ground 1.

   The offences and sentences imposed

7. On 19 August 2016, the appellant was sentenced for seven offences committed between 6 July 2014 and 6 January 2016.  The appellant was also dealt with by the Judge with respect to a suspended sentence bond which had been entered into in the District Court on 12 July 2013.  The suspended sentence related to the offence of aggravated robbery committed in March 2012 for which the appellant had received a head sentence of four years imprisonment with a non-parole period of two years and three months imprisonment suspended.  I set out below a table, prepared by counsel for the appellant, setting out the offences and the various penalties imposed by the Judge, the detail of which I do not understand to be challenged by the prosecution. 

Offence	File Numbers	Sentence	Notional head sentence (pre-discount)[4]
1.	Possession of a Controlled Drug on 6 July 2014 at Northfield	DCCRM-15-1510 SCCRM-16-261	3 months, 2 weeks imprisonment after 10% discount	3 months, 24 days (117 days)
2.	Theft on 6 May 2015 of six dressing gowns and a set of pyjamas from Target at Salisbury Downs	MCPAR-15-4453 DCCRM-16-1159	2 months (61 days) after 30% discount	2 months, 24 days (87 days)
3.	Theft on 3 June 2015 of items of clothing to the value of $74.99 from Rebel Sports at Elizabeth	MCPAR-15-10164 DCCRM-16-1197	2 months (61 days) after 30% discount	2 months, 24 days (87 days)
4.	Drive under disqualification/Drive Unregistered/Drive Uninsured on 24 July 2015 at Adelaide	AMC-16-247 DCCRM-16-1216	2 weeks (14 days) after 30% discount	2 weeks, 6 days (20 days)
5.	Theft on 5 August 2015 of items of clothing valued at $692.55 from Harris Scarfe at Noarlunga Centre	MCCHB-15-4361 DCCRM-16-1217	2 months (61 days) after 30% discount	2 months, 24 days (87 days)
6.	Drive under disqualification on 18 September 2015 at Modbury Downs	MCPAR-16-1175 DCCRM-16-1215	2 months (61 days) after 30% discount	2 months, 24 days (88 days)
7.	Theft on 6 January 2016 of four pairs of shorts and one pair of thongs to the value of $122 from Harris Scarfe at Salisbury	MCPAR-16-7134 DCCRM-16-1235	1 month, 3 weeks (53 days) after 40% discount	2 months, 24 days (88 days)
8.	Application for Enforcement of a Breached Bond entered into on 12.07.13 for aggravated robbery for a period of 2 years	DCCRM-16-1158 SCCRM-16-261	Suspension revoked. Head sentence of 4 years, non-parole period 2 years, 3 months carried into effect

[4]    Notional head sentences as calculated by the Appellant based on 1 month = 30.5 days.

The references in the table to percentage discounts are references to the maximum discounts available in accordance with section 10C of the Sentencing Act on account of the appellant’s early pleas of guilty.  The commission of offences 1, 2 and 3 caused the appellant to breach the bond.

1. Sentences for the offences 1, 4 and 6 were ordered to be accumulated and the total thereof (six months) ordered to be served cumulatively on the head sentence of four years brought into effect following the revocation of the suspended sentence bond.  Each of the sentences for the theft offences (2, 3, 5 and 7 in the table, totalling seven months and three weeks) were ordered to be served concurrently with the earlier mentioned sentences.  As a consequence, the appellant was ordered to serve a total period of four years and six months imprisonment and, as earlier indicated, a non-parole period of two years and six months was fixed, extending the non-parole period by three months. 

   A procedural difficulty

2. At the outset of the appeal, both parties recognised and made submissions with respect to a jurisdictional and procedural complication arising from the following circumstances.

   (i)Offence 1, being one of the offences which breached the suspended sentence bond, was charged on Information. An appeal against the sentence imposed for this offence lies pursuant to section 352 of the Criminal Law Consolidation Act 1935 (“the CLCA”) and requires permission, as does the appeal against the manner by which the Judge dealt with the suspended sentence bond.

   (ii)Each of the offences 2 to 7 was charged on Complaint.

   (iii)The appellant pleaded guilty to offences 2 and 3 in the Magistrates Court. However, because they breached the suspended sentence bond they were referred to the District Court by a Magistrate pursuant to the power available under section 57(4a)(b) of the Sentencing Act. The appeals against the sentences imposed for these offences also lie to the Court of Criminal Appeal pursuant to section 352 of the CLCA and require permission.[5]

   (iv)Offences 4, 5, 6 and 7 which did not breach the bond were merely called up, that is, transferred to the District Court by an administrative action instigated by the Judge in order for the Judge to execute the power available to a District Court Judge to sit as a Magistrate pursuant to section 22 of the Magistrates Act 1983.[6] Given that the Judge was exercising the jurisdiction of the Magistrates Court with respect to these offences, any appeal arose as a right pursuant to section 42 of the Magistrates Court Act.[7] 

   The practical difficulties and the inconveniences that this type of situation can give rise to, whereby an appellant wishing to appeal against a single sentencing package imposed by the District Court after exercising these various jurisdictions, have been considered by this Court in a number of relatively recent decisions.[8]  As has been observed on previous occasions, it is a matter that deserves the attention of Parliament. 

   [5]    R v Allen [2002] SASC 98; (2002) 81 SASR 434.

   [6]    See, generally, Tarasenko v Boylan (1992) 58 SASR 587 at 589.

   [7]    R v Wilson [2016] SASCFC 139 at [13] and [29] (Kourakis CJ with whose reasons Nicholson and Hinton JJ agreed), R v Allen [2002] SASC 98; (2002) 81 SASR 434 at [41]-[42] (Lander J with whose reasons Martin J agreed) and cf; R v Gibbs [2004] SASC 187; (2004) 89 SASR 30.

   [8]    R v Allen [2002] SASC 98; (2002) 81 SASR 434, R v Capalbo [2005] SASC 47 at [15] (White J), R v Gibbs [2004] SASC 187; (2004) 89 SASR 30 at [11] (Doyle CJ), R v Kartinyeri [2016] SASCFC 20 at [10]-[15] (Nicholson J, with whose reasons Kourakis CJ and Kelly J agreed).

3. The procedural difficulty in the present case is that, on the present state of the authorities, the appellant is obliged to comply with two different procedural regimes and to institute appeals in two different jurisdictions, one to a single Judge of this Court in the civil jurisdiction as of right and one to the Court of Criminal Appeal but only by permission.  The appellant has attempted to accommodate this issue by filing a notice of appeal with respect to each individual sentence imposed together with a composite notice purporting to appeal to the Court of Criminal Appeal against all of the sentences imposed.  This is not a suitable occasion to review, again,[9] the decision in R v Allen.[10]  In the circumstances of this case and insofar as is necessary, I would deal with the appeal in accordance with the composite notice.  Insofar as is necessary, I would refer any single Judge appeals to the Court of Criminal Appeal for determination.  I would also grant permission to appeal on ground 1 with respect to those sentences for which permission is required.

   [9]    See R v Wilson [2016] SASCFC 139.

   [10] (2002) 81 SASR 434.

   Should there be a long remand in the nature of that provided for in section 19B?

4. The total effective period of imprisonment imposed with respect to the most recent offending, offences 1 to 7 in the table, was six months.  It is not necessary to pay further attention to this more recent offending at this stage.  These offences will need to be revisited when the appellant is resentenced. 

5. The more significant outcome for the appellant, as recognised by the Judge, was his Honour’s decision to revoke the suspended sentence bond with respect to the aggravated robbery committed in March 2012 and to decline to exercise the discretion under section 58(4) of the Sentencing Act to reduce the term of the sentence originally imposed.

6. An important issue on appeal is whether the Judge was correct to find that the materials before his Honour did not disclose “proper grounds” not to revoke the suspended sentence bond or, in the event of revocation, “special circumstances” sufficient to justify reducing the term of the original sentence.[11] 

   [11] See section 58(3) and section 58(4), respectively, of the Criminal Law (Sentencing) Act 1988 (SA).

7. However, an important a priori issue before the Judge was whether or not the appellant’s application for a longer than usual adjournment pursuant to section 19B of the Sentencing Act should have been allowed.  Section 19B is in these terms.

   19B—Deferral of sentence for rehabilitation and other purposes

   (1)A court may, on finding a person guilty of an offence (whether or not it proceeds to conviction), make an order adjourning proceedings to a specified date, and granting bail to the defendant in accordance with the Bail Act 1985—

   (a)     for the purpose of assessing the defendant's capacity and prospects for rehabilitation; or

   (b)     for the purpose of allowing the defendant to demonstrate that rehabilitation has taken place; or

   (c)     for the purpose of assessing the defendant's eligibility for participation in an intervention program; or

   (d)     for the purpose of allowing the defendant to participate in an intervention program; or

   (e)     for any other purpose the court considers appropriate in the circumstances.

   (2)As a general rule, proceedings may not be adjourned under this section (whether by a single adjournment or a series of adjournments) for more than 12 months from the date of the finding of guilt (the usual maximum).

   (3)A court may adjourn proceedings for a period exceeding the usual maximum if the defendant is, or will be, participating in an intervention program and the court is satisfied that—

   (a)     the defendant has, by participating in, or agreeing to participate in, the intervention program, demonstrated a commitment to addressing the problems out of which his or her offending arose; and

   (b)     if the proceedings were not adjourned for such a period—

   (i)the defendant would be prevented from completing, or participating in, the intervention program; and

   (ii)the defendant's rehabilitation would be prejudiced.

   (4)In considering whether to adjourn proceedings for a period exceeding the usual maximum, a court is not bound by the rules of evidence and may (in particular) inform itself on the basis of a written or oral report from a person who may be in a position to provide relevant information.

   (5)A person who provides information to the court by way of a written or oral report is liable to be cross-examined on any of the matters contained in the report.

   (6)If a statement of fact or opinion in a report is challenged by the prosecutor or the defendant, the court must disregard the fact or opinion unless it is substantiated on oath.

   (7)This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment.

8. The appellant sought from the Judge a longer than usual remand in order to enable her to undertake a short but targeted treatment plan which involved referrals to a psychologist and a medical practitioner and which was aimed at addressing the appellant’s drug addiction issues which underpinned her relapse into the offending that was before the Court.  There had also been a recent material change in the arrangements in place for the care of the appellant’s severely disabled daughter, A. 

9. It was submitted to the Judge that the long remand was required to enable additional information concerning the appellant’s capacity for further rehabilitation from drug use to be obtained, to assist in the stabilisation of her housing situation and to enable further information concerning recent changes in the arrangements in place for the care of A to be obtained.  The appellant contends that these matters with respect to which an opportunity to obtain further evidence was sought were relevant to the sentence to be imposed for the substantive offences (offences 1 to 7 in the table) as well as the appropriate action to be taken with respect to the breach of bond.

10. The application for a long remand fell to be considered within the context of: the relatively minor nature of the more recent substantive offending; the fact that the more significant offending (the aggravated robbery) had been committed some four and a half years previously with no repetition, within that period, of offending near the same level of seriousness; and, the appellant’s exacting personal circumstances, including the change in arrangements with respect to her daughter. 

11. A relatively up to date summary of the appellant’s history and circumstances available to the Judge was that contained in a pre-sentence report dated 20 May 2016.[12] 

    [12]   Sentencing submissions before the Judge took place between 17 June 2016 and 12 August 2016 and sentencing occurred on 19 August 2016.

12. The pre-sentence report includes the following information under the heading “Criminogenic factors”.

    As stated in the presentence report of 2012, [the appellant’s] personal history had been untroubled by criminal behaviours until she was in her early 20’s when a series of losses and tragedies contributed to an unravelling of her previous stability.  She became vulnerable to the influence of anti-social associates, began to abuse illicit drugs, lost her employment and suffered depression in the wake of her grief at the loss of her brother, her father, grandparents and then her daughter’s disabling congenital condition, with concomitant restricted visiting rights.

    A previous partner of [the appellant’s] was a co-offender for a period, the resulting Court convictions led to her imprisonment in 2012-13.  [The appellant’s mother] advised that although her daughter had not admitted it, her mother had strongly suspected domestic violence in this relationship.

    Briefly therefore, criminogenic factors would appear to be substance abuse, contact with anti-social negative peers/relationships, underpinned by ongoing depression about her daughter and [the appellant’s] disempowerment in terms of her rights to see and care for her child and other losses.

1. The pre-sentence report contains the following information under the heading “Background information”.

   [The appellant] is a 32 year old woman of Scottish, Czechoslovakian, and Aboriginal descent (with her Czech/Aboriginal heritage descending from her father).

   [The appellant’s] mother had previously advised this department that her daughter had identified strongly with her Aboriginal heritage, having attended specific Aboriginal schools as a child.  She has uncles who work in the Aboriginal Sobriety Group in Adelaide and it was with their help that she gained training and an apprenticeship in hairdressing.

   [The appellant] is the mother of an 8 year old daughter [A], who was in the care of [the appellant’s] former partner and his wife who had cared for the child for several years.  [A] is diagnosed with Pierre Robin Sequence, a congenital condition that affects her breathing, eating, speech and sight.  As a result of this disorder, [A] spent the first two years of her life in hospital.  For the first 18 months of [A’s] life, [the appellant] visited the child every day but increasingly struggled with the associated distress, particularly as [A] had to be resuscitated because of her breathing difficulties on several occasions.

   In addition [the appellant’s] distress was compounded by other deaths within her close family, i.e. her father, her grandparents and some time earlier, her younger brother who had died as a result of an accident outside the same hospital caring for her child.  This information was verified by [the appellant’s] mother at the time that the two abovementioned reports were written.

   The [appellant] had contact with a social worker at the hospital and her daughter was born but became increasingly depressed, ceased this contact and stopped attending the hospital as frequently.  She said that she resorted to drug use, using amphetamines and heroin.  [The appellant’s] mother had advised at the time of the above reports that her daughter’s drug use commenced when the [appellant] formed a relationship with a man who had been a drug user and offender since his mid-teens.  [The appellant] had admitted that the relationship was destructive adding that this relationship had ended 15 months prior to the 2012 pre-sentence report.

   When the [appellant’s] daughter was finally released from hospital, she was placed in the care of her father, with [the appellant] considering that her rights and wishes in the matter had been entirely overlooked.  The child’s father had granted [the appellant] monthly visiting rights and at one stage she was going to take legal advice to secure her rights with regard to [A].  However, following mediation through Relationships Australia [the appellant] did not pursue this course of action.

   The [appellant] has had periods when she has been on the methadone program, (including currently – 45 mls per day).  [The appellant] also advised she has been in a rehabilitation centre and has undergone treatment in Perth for Naltrexone implants.  Plus, [the appellant] has participated in Alcohol and Other Drugs counselling both in prison and in the community.  [The appellant] advised that she has great faith in the efficacy of the implants, but following a miscarriage about 16 months ago she had a relapse and began using heroin again.

   [The appellant] informed that she is seeking a referral from her general practitioner to undergo further treatment through a Dr Reece Henning in McLaren Vale shortly.  Apparently Dr Henning is qualified to provide Naltrexone implants.  The benefit of this treatment is expensive and lasts for about nine months.  [The appellant] advised that her current partner and her mother have assisted her to pay for the treatment and she is currently paying them back at the rate of $25.00 per week.  [The appellant] also advised that her current partner is a positive support, and does not use illicit substances.

2. The pre-sentence report contains the following under the heading “Evidence of defendant’s responsiveness”.

   [The appellant] completed a period of bail on 13/05/2009 (8 months, 4 days).  She finished a good behaviour bond with supervision on 12/11/2010 (1 year 6 months).  A period of home detention bail was completed on 24/11/11 (3 months, 8 days).  Another period of home detention of [sic] was completed on 03/02/2012 (2 months 11 days).  A period of bail was cancelled and [the appellant] was imprisoned from 26/03/2012 until 12/02.2012.  Later records show that she completed Parole of 1 year, 7 months, 11 days on 22/09/2014, and completed a supervised good behaviour bond of 2 years on 1/07/2015.  However during the Parole period, JIS shows two period of imprisonment for breach of Parole conditions.

   [The appellant’s] behaviour in prison, supervised good behaviour bonds and home detention bail appears to have been compliant, although it was noted that during one period of home detention, further offending charges were laid.

   [The appellant] has previously displayed remorse for her actions, but little awareness of the consequences of her actions upon others apart from her immediate family and daughter in particular.

   [The appellant] does recognise that she has to cut ties with former associates and counts her current partner whom she maintains is drug free, as supportive, along with her mother.

3. There was additional information available to the Judge in relation to the change of circumstances concerning the care of A.  Some three months prior to the preparation of the pre-sentence report, the father of A surrendered her to the guardianship of the Minister.  As a result, and as at the time of sentencing, she was being cared for on a day to day basis by the appellant’s mother.  The author of the pre-sentence report noted that A was considered to be in the high care category and that Families SA had indicated concerns regarding the appellant’s drug usage.  The report went on to provide.

   Current access for [the appellant] with [A] is at the premises of Families SA, Elizabeth.  [The appellant] is planning to build up to having visits to her daughter at her mother’s home and to be able to participate eventually in the care of her daughter.  Whilst [A] is at school, [the appellant] is able to visit her mother with whom she still has a strong relationship.  [The appellant] presented as understanding that [A] is now her mother’s priority.  [The mother] lives at Kudla, SA.

   During the interview for this report, [the mother] advised that [the appellant] appeared devastated to learn that [A’s] medical needs had not been correctly addressed under her father’s care and that [A] had in fact spent considerable time in respite care.

4. The position before the Judge was complex.  Further, there can be little doubt that the appellant’s prior history of drug abuse and offending coupled with the extraordinarily difficult demands that the care or even assisting with the care of a very disabled child would place on the already compromised ability of the appellant to cope generally would render, in anyone’s mind, the prospects of continued rehabilitation as being guarded.  Nevertheless, the potential for the appellant to obtain and take advantage of further assistance with respect to her drug issues and to be able to form a relationship with and actively assist with the care of her disabled daughter, which of itself might provide positive impetus for the appellant’s rehabilitation, ought not to have been discounted. 

5. The Judge did not provide any reasons in his sentencing remarks for the decision to refuse to remand the appellant pursuant to section 19B.  However, his Honour did indicate towards the end of the submissions put by counsel on behalf of the appellant that he remained “unpersuaded to use 19B”.  In my view, there was a serious case made out for the granting of a section 19B remand.  However, after giving consideration to the matter I next deal with, it is unnecessary to decide whether or not the Judge erred in refusing the application.

   Fresh evidence

6. At the hearing of the appeal, the appellant applied to adduce fresh evidence on the appeal and, in this respect, sought to have read an affidavit affirmed by the appellant’s mother on 14 February 2017.  The mother is 52 years of age and has been the appointed guardian and full-time carer of A since June 2016.  In the affidavit she deposes to the challenges that have arisen over the subsequent seven months whilst A has been in her care.  The following matters are canvassed in the affidavit.

   (i)A is profoundly disabled and requires 24 hour assistance for her day to day care.

   (ii)Until June 2016, A was predominantly in the care of her father and his partner with both the appellant and her mother being afforded extremely limited contact.

   (iii)That arrangement prevailed until 6 April 2016 when the partner advised the appellant’s mother that she and the father were unable to care for A any longer and had surrendered her to Families SA.

   (iv)At her request, the appellant’s mother was appointed as full-time guardian on 14 June 2016 as a consequence of orders made in the Youth Court.

   (v)Apart from attendance at a special school between 8.45am and 2.45pm each day, A requires full time care and assistance by somebody trained to provide it.  According to the appellant’s mother, only herself and the appellant have been trained in this respect.  There are no other family members who are equipped or trained to care for A.  Whilst the appellant’s mother is in good health for her age, she is concerned that as A gets bigger and she gets older she will no longer be able to cope physically or care for A on her own.  Over the last seven months or so, the caring arrangement has taken its toll on the mother.  She had not expected it to be as difficult as it has been without her daughter’s assistance. 

   (vi)In August 2016, when the appellant was sentenced, her mother did not fully contemplate the extent of A’s daily care needs and the toll that would be placed on the mother’s own physical health and wellbeing.  She did not fully appreciate the burden of having to care for A alone for two and a half years or more whilst the appellant was in custody and without her assistance.

7. In the affidavit, the appellant’s mother has summarised A’s disabilities.  This provides an indication of the burdens imposed on a full-time carer. 

   a.[A] is still unable to feed herself, and feeds with a gastric feeding tube connected to her stomach.  I prepare her food in bottles, and feed her using the tube five times a day.  She has only recently been able to start eating puree and to drink water by herself from a cup.

   b.[A] cannot go to the toilet by herself and still wears nappies which require frequent changing.

   c.[A] is autistic and non-verbal.  Increasingly, she can communicate in other ways, including by signing and physical movements.  [The appellant] calls every two or three days from the Women’s Prison and talks to [A].  She knows that her mummy is on the phone and can blow kisses on the phone.  I have taken [A] to see her mother at the Women’s Prison on occasions.

   d.[A] sleeps with oxygen at night.  I have to monitor this carefully as sometimes she pulls the tube out and there is a risk that she could strangle herself.  I will usually need to get up several times a night to check on her.

   e.[A] has one leg 3cm longer than the other.  She wears a shoe lift.  She has ongoing appointments at the hospital for X-rays to monitor the progress of that leg.  We have been recently been advised that she may need to have pins inserted in the longer leg in future to stunt its growth.

   f.[A] also currently has some dental issues due to all of the operations on her jaw.  She requires frequent appointments to the dentist.  We also see a nutritionist, dietician, respiratory doctor, and have ongoing appointments with the cranio-facial unit at the Women’s and Children’s Hospital.

8. Having considered the Judge’s sentencing remarks, I took the view that the matters deposed to by the appellant’s mother in her affidavit were of assistance to this Court and likely would have been of assistance to the Judge had the affidavit come before him, at least with respect to the question of whether or not a remand pursuant to section 19B was warranted.  At the very least, the material in the affidavit is of assistance in providing a better understanding of the evidence and submissions before the Judge concerning the appellant’s personal circumstances, opportunities and prospects for rehabilitation and the impact a lengthy term of imprisonment would have on both her mother and her disabled daughter.  In R v Smith,[13] King CJ (with whose reasons Cox and O’Loughlin JJ agreed) held as follows.

   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 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.

   [citations omitted]

   In my view, the affidavit affirmed by the appellant’s mother falls within the category of fresh evidence identified by the former Chief Justice as serving to explain facts which were before the Judge so as to put them in a new light.  The evidence should be received as fresh evidence on the appeal.

   [13] (1987) 44 SASR 587 at 588.

   Conclusion

9. At the conclusion of the hearing of the appeal, I was of the view that the materials and submissions before the Judge bearing on the question of whether or not a section 19B remand was warranted, together with the fresh evidence as described above, was such as to justify the granting of a long remand in the nature of that provided for by section 19B.  It was for this reason that I joined in the orders of the Court referred to at the beginning of these reasons.

10. I add the following.  A question that it is unnecessary to resolve in this matter is whether section 19B itself empowers an appellate court to grant the type of remand envisaged by section 19B following the allowing of an appeal and the setting aside of a lower court sentence.  Is the power available under section 19B confined to a first instance sentencing court?  The concern arises, inter alia, from the language of the opening words of section 19B(1):

    A court may, on finding a person guilty of an offence ... make an order adjourning proceedings to a specified date, and granting bail ...

    [emphasis supplied]

11. In any event, I am satisfied that in the present case[14] this Court following a successful appeal has the power at common law to order a long remand in the nature of that envisaged by section 19B and whether or not section 19B, itself, also confers such a power.[15]

    [14]   As was the case in R v Constant [2016] SASCFC 87; (2016) 126 SASR 1.

    [15]   Section 19B(7) provides “This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment”, and see Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44.

12. After writing these reasons, I have had the opportunity to consider the additional observations of the Chief Justice with which I agree.

    PARKER J.

13. I agree with the reasons of Nicholson J and with the additional observations of the Chief Justice.