R v Cunningham

Case [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…

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R v Cunningham [2017] SASCFC 30
Case
[2017] SASCFC 30
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by a convicted individual against a sentencing decision made by a judge. The appeal focused on the judge's refusal to grant a remand under section 19B of the relevant legislation, which allows for the adjournment of proceedings and the granting of bail. The appellant sought to adduce fresh evidence on appeal, comprising an affidavit from the appellant's mother detailing the significant care needs of the appellant's profoundly disabled daughter, A.

The central legal issues before the appellate court were whether the judge erred in refusing the section 19B remand and whether the fresh evidence sought to be adduced by the appellant was admissible on appeal. The court was also required to consider the nature and extent of its own powers to grant a remand following a successful appeal and the setting aside of a lower court's sentence, particularly in light of the wording of section 19B.

The court reasoned that the fresh evidence, detailing the appellant's daughter's profound disabilities and the substantial burden of her care, was admissible as it served to explain facts already before the sentencing judge and put them in a new light, consistent with the principles established in *R v Smith*. While acknowledging the serious case for a section 19B remand, the court found it unnecessary to definitively determine if the original judge erred in refusing it. Instead, the court concluded that the combined effect of the original material and the fresh evidence justified granting a long remand, akin to that provided by section 19B. The court was satisfied that, irrespective of whether section 19B itself empowered such an order on appeal, it possessed the common law power to grant a long remand following the successful appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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.

Decision

Reasons for decision

KOURAKIS CJ NICHOLSON J
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 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. 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] 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.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ, NICHOLSON J

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