R v Cunningham (No 2)

Case [2017] SASCFC 136

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CUNNINGHAM (No 2)

[2017] SASCFC 136

Judgment of The Court of Criminal Appeal

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

26 October 2017

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

On 8 March 2017, this Court allowed the appellant’s appeal against sentence and set aside various District Court sentences.  The appellant was remanded on home detention bail for a period of approximately seven months.  Having heard further submissions, the Court is to resentence the appellant.

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

1.       For the District Court offences the appellant is resentenced to a single term of imprisonment for six months backdated to commence on 5 August 2016.

2.       The respondent’s application for the enforcement of the breaches of the bond entered into on 12 July 2013 with respect to the offence of aggravated robbery is dismissed.

3.       The appellant be discharged and the orders for her home detention bail be vacated.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 33B, s 58, referred to.
R v Neal [2017] SASCFC 44; R v Willett [2017] SASCFC 62; R v Oake [2017] SASCFC 82; R v Buckman (1988) 47 SASR 303, considered.

R v CUNNINGHAM (No 2)
[2017] SASCFC 136

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

KOURAKIS CJ.

  1. I would join in the orders proposed by Nicholson J for the reasons given by him.

    NICHOLSON J.        

    Introduction

  2. On 8 March 2017, this Court made orders allowing the appellant’s appeal against sentence, setting aside various District Court sentences and remanding the appellant on home detention bail with strict conditions with a view to her returning before the Court for resentencing at the expiration of the remand.  On 13 April 2017, the Court published reasons for its decision to allow the appeal[1] (the “earlier reasons”) which canvassed, inter alia, the nature of the offences committed, the sentences imposed by the District Court Judge, the personal circumstances of the appellant and fresh affidavit evidence which provided information, additional to that which was before the District Court Judge, concerning the living and medical circumstances of the appellant’s profoundly disabled (now nine year old) daughter.  These reasons will need to be read in conjunction with the earlier reasons. 

  3. The appellant has completed approximately seven months on home detention bail following the allowing of the appeal and it is now necessary for the Court, having heard further submissions, to resentence the appellant.

    The relevant offending and the District Court sentencing outcome

  4. On 12 July 2013, the appellant was sentenced to imprisonment for four years with a non-parole period of two years and three months for the offence of aggravated robbery committed in March 2012.  That sentence was suspended upon the appellant entering into a bond to be of…

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R v Cunningham (No 2) [2017] SASCFC 136
Case
[2017] SASCFC 136
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CaseChat Overview and Summary

The case of *R v Cunningham (No 2)* concerned an appeal against a sentencing decision made by the District Court. The appellant, Cunningham, sought to have the suspension of a previously imposed sentence of imprisonment revoked and to be resentenced. The appeal was heard by Kourakis CJ, Nicholson and Parker JJ.

The central legal issue before the Full Court was whether the suspension of Cunningham's sentence should be revoked, and if so, whether the court should exercise its discretion under section 58(4) of the relevant legislation to reduce the length of the suspended sentence. This discretion arises where a court revokes the suspension of a sentence and considers there to be special circumstances justifying a reduction. The court also considered the appellant's application to adduce fresh evidence on appeal, relating to the significant ongoing care needs of her disabled daughter.

The Court noted that the power to reduce the length of a suspended sentence under section 58(4)(a) only arises if the suspension is revoked. While the Chief Justice indicated that there were strong grounds to reduce the sentence if revocation were to occur, given the substantial changes in the appellant's personal circumstances since the original sentencing, the suspension was ultimately not revoked. The Court therefore did not need to exercise the discretion under section 58(4).

The Court made orders resentencing the appellant to a term of six months imprisonment for the District Court offences, backdated to commence on 5 August 2016. The respondent's application for enforcement of breaches of a bond was dismissed. Taking into account the time already spent in custody and on home detention bail, the appellant was deemed to have fully served the resentenced term and was discharged, with orders for home detention bail vacated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS CJ NICHOLSON J
Given that I would not revoke the suspension of the previously imposed sentence, the power under section 58(4) to reduce the length of the sentence as originally imposed does not arise. Subsection 58(4)(a) provides that:Where a court revokes the suspension of a sentence of imprisonment, the court –(a)may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;Nevertheless, I indicate that if the suspension were to have been revoked, there would be strong grounds for exercising the discretion available under subsection 58(4)(a). I would have reduced, quite substantially, the length of the suspended term of imprisonment, bearing in mind the substantial change in the appellant’s personal circumstances that have taken place since the original sentence was imposed more than four years ago and after having regard to the principles governing the proper application of subsection 58(4) set out in Buckman and as explained in subsequent authority. Conclusion I would make the following orders.(i)For the District Court offences the appellant is resentenced to a single term of imprisonment for six months backdated to commence on 5 August 2016.(ii)The respondent’s application for the enforcement of breaches of the bond entered into on 12 July 2013 with respect to the offence of aggravated robbery is dismissed.The appellant, having spent seven months in custody together with time on home detention bail following her being sentenced in the District Court, is to be taken to having fully served the sentence imposed in (i) above. Accordingly, I would further order:(iii)The appellant be discharged and the orders for her home detention bail be vacated. I agree with the reasons of Nicholson J and the orders that he proposes.APPENDIX18A 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.[6] [6] Sentencing submissions before the Judge took place between 17 June 2016 and 12 August 2016 and sentencing occurred on 19 August 2016.19The 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.20The 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.21The 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.22There 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.23The 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. 24The 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 evidence25At 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.26In 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.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ, NICHOLSON J

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