R v FRANCIS
[2012] SASCFC 50
•2 May 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v FRANCIS
[2012] SASCFC 50
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
2 May 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence – the appellant was found guilty after trial by jury of one count of assault occasioning actual bodily harm, two counts of aggravated assault and five counts of aggravated threaten harm perpetrated against his former domestic partner - the sentencing Judge imposed a period of imprisonment of four years imprisonment with a non-parole period of 15 months – the sentencing Judge refuse to suspend the sentence on the basis of the seriousness of the offending – whether fresh evidence of a psychologist’s report in relation to the appellant’s current partner’s and infant child’s wellbeing should be received – whether the sentencing Judge erred in the exercise of the discretion not to suspend the sentence.
Held: appeal dismissed – fresh evidence should not be received – receipt of the fresh evidence does not substantially alter the balance of sentencing considerations which were before the sentencing Judge – the sentencing Judge did not err in the decision not to exercise his discretion to suspend the sentence.
Criminal Law Consolidation Act 1935 (SA) s 353(4), s 359, referred to.
R v C (2004) 89 SASR 270; R v Dorning (1981) 27 SASR 481; R v Brain (1999) 74 SASR 92; Spargo v Greatorex (1992) 59 SASR 1; Sullivan v The Queen [1975] Tas SR 146; R v Wirth (1976) 14 SASR 291; Neill v Police [1999] SASC 270; Walsh v Department of Social Security (1996) 67 SASR 143; Hillman v Black (1996) 67 SASR 490; Jones v Dodd (1999) 73 SASR 328, considered.
R v FRANCIS
[2012] SASCFC 50Court of Criminal Appeal: Doyle CJ, Vanstone and Kourakis JJ
DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons of Kourakis J.
VANSTONE J: I would dismiss the appeal. I agree with the reasons of Kourakis J.
KOURAKIS J: After a trial by jury on an information comprising 20 counts, the appellant was convicted in the District Court of the following offences:
·Assault occasioning actual bodily harm committed in 1998 (the first offence).
·Two counts of aggravated threatening to cause harm, both committed on 26 September 2006 (the second and third offences).
·Aggravated assault committed in June 2007 (the fourth offence).
·Aggravated threatening to cause harm committed in 2007 (the fifth offence).
·Aggravated assault committed in December 2007 (the sixth offence).
·Two counts of aggravated threatening to cause harm committed on 17 February 2008 and 7 March 2008 (the seventh and eighth offences respectively).
The offences were committed against the appellant’s former de facto partner, and mother of two of his four children, both when they were living together and after they had separated.
On the appellant’s trial his former partner, Ms B, gave evidence of the offences of which he was convicted, of other charged offences of which he was acquitted, and of numerous assaults which were not charged. The sentencing Judge accepted Ms B’s evidence and found beyond reasonable doubt that the appellant committed the uncharged assaults of which she had testified. Those assaults included occasions on which the appellant pushed and dragged Ms B around in the course of arguments and fights. Other assaults involved punching and kicking. On other occasions the appellant assaulted Ms B about the breasts and genitals.
The sentencing Judge imposed a single sentence of immediate imprisonment of four years for all eight offences. He fixed a non-parole period of 15 months.
The appellant appeals against the sentence on the ground that the sentence should have been suspended. In support of that ground the appellant has tendered on the appeal a report of a psychologist which was obtained after he was sentenced. The report expresses concern about the risk to the emotional and psychological welfare of the appellant’s current de facto partner and their baby daughter arising from the appellant’s incarceration. In my view the report should not be received as further evidence but even if it were received, it would not support a reversal of the sentencing Judge’s discretion. My reasons follow.
The Offences
The first offence was committed by punching Ms B to the forehead with sufficient force to cause a lump. The offence was the culmination of a course of violence inflicted over some hours.
The second and third offences comprised threatening phone calls made within a few hours of each other. The appellant threatened to stab, shoot, bash and rape Ms B. The language used by the appellant was particularly menacing and violent.
The appellant committed the fourth offence by grabbing Ms B’s hair and pulling her around her house. He then straddled Ms B and attempted to choke her. He grabbed and twisted her genitalia. He then kicked her about the legs.
On the occasion of the fifth offence the appellant went to Ms B’s home and shouted through the security screen of her home that he would bash her.
The sixth offence was committed during an outing with their children. The appellant pushed Ms B to the ground, kicked her about the face and nose and then attempted to strike her face with a “totem tennis” pole.
The seventh offence was yet another threat made over the telephone when the appellant was actually at the door of Ms B’s home and was attempting to gain entry. He threatened to break her jaw.
The eighth offence was committed about a fortnight after the seventh offence. The appellant threatened to bash and rape Ms B using a pickaxe handle.
Personal Circumstances
The appellant was born in Darwin in October 1973 where he commenced but did not complete, year 11. He worked as a labourer before he was drafted to the Port Adelaide Football Club. In the course of his professional AFL football career he played with the Melbourne, Brisbane Bears, Port Power and Fremantle football clubs. He has been a successful coach of junior football teams since his retirement from professional football. He was employed as an indigenous youth employment consultant between 2005 and 2008.
The appellant has an 18 year old daughter from an early relationship. Two children were born of his relationship with Ms B. They are now aged 11 and 10.
The appellant has been in a relationship with Ms G for three years. On 14 September 2011 their daughter, P, was born. P was born with gastroschisis, a condition in which the abdominal contents present outside of the abdominal cavity. P’s condition was corrected surgically. During her recovery P was hospitalised and fed intravenously for about three weeks. In that time the appellant was her primary carer and continued in that role after she was discharged.
Ms G is employed as a receptionist at a medical practice. She has a son, aged eight, from a previous relationship. The sentencing Judge received a statement prepared by Ms G setting out the history of her relationship with the appellant and the circumstances surrounding the birth of P. Ms G disclosed in that statement that she had been unable to bond with P after her birth. She described the strong bond which the appellant had developed with P during her convalescence and subsequently. In that statement Ms G declared that “financially and emotionally I wouldn’t cope without him at home.”
The report of an assessment of the appellant’s personal circumstances provided by the psychologist Mr Fugler, was received by the sentencing Judge. The report recorded the appellant’s concern that Ms G “will not be able to work and cope with bringing up their daughter P should he be imprisoned.”
The report of a senior social worker with the Women’s and Children’s Hospital was also received. The social worker reported that:
It is anticipated that over the coming months, they will continue to face a range of stresses and challenges as they cope with a newborn baby. The important and emotional and practical support they provide to each other and their children is immeasurable.”
Could you please take into consideration [Ms G’s and the appellant’s] need to maintain a strong, consistent and cohesive family unit and their current circumstances in finalising matters before the court.
The Sentencing Judge’s Remarks
The sentencing Judge gave the following reasons for not suspending the sentence:
There remains the very difficult question of suspension. In addition to the mitigating factors I have already referred to, there is the important consideration of your being the primary carer of your young daughter and your eight year old stepson. It is a very serious matter to deprive children of the immediate care of a parent. The violence you showed in this relationship has not been shown before or afterwards.
On the other hand, the offending was serious and not isolated. In my view the offending is too serous for there to be good reason to suspend the sentence. You will have to serve the sentence. It will begin today.
Further Evidence
Ms G consulted her general practitioner about her difficulty in bonding with P for the first time on 28 January this year, just three days after the appellant was sentenced. Her general practitioner referred her to a psychologist.
On the hearing of the appeal the appellant tendered a report of the psychologist dated 7 March 2012. The psychologist reports that Ms G presented with depressed mood and fatigue. Ms G told the psychologist that she had regular thoughts of self harm, but described her intention to carry through with the thought as “low.” The psychologist commenced Ms G on a treatment program of anti-depressant medication and supportive psychotherapy. There had been “little, if any, improvement” between 13 February and 5 March. The psychologist has diagnosed moderate to severe postpartum depression and gives a guarded prognosis. The psychologist opines that Ms G is unlikely to make a full recovery without additional support and treatment.
Ms G also reported to the psychologist that even though she was attending to the physical needs of P and her son, she and the children were emotionally distressed most of the time. In the psychologist’s opinion Ms G is not providing the “responsive, sensitive and attuned primary care” which P needs. It is also her opinion that the emotional and developmental health of both P and Ms G’s son will be adversely affected by her poor psychological state. In the psychologist’s opinion, the emotional needs of Ms G and her children would best be met by the appellant returning to the family home. The psychologist reports that Ms G’s symptoms go “far beyond that of a ‘distressed’ but otherwise healthy wife whose husband has been imprisoned.” [1]
[1] A direct account of the symptoms experienced by Ms G and her children after the appellant’s imprisonment is given in a statement of Ms G dated 28 February 2012 which was exhibited to an affidavit, filed on the appeal. The affidavit was not tendered but I have taken it into account in a general sense for the purposes of assessing the application to tender the report of the psychologist.
The Discretion to Receive Further Evidence
The scope of the statutory power[2] to receive further evidence in criminal appeals was comprehensively considered by Doyle CJ in R v C.[3]Importantly, the power is ancillary to the appellate jurisdiction of the Full Court and an appeal against sentence brought pursuant to s 353(4) of the Criminal Law Consolidation Act 1935 (CLCA) is by way of a rehearing in which an error in the exercise of the sentencing discretion must be established.[4]
[2] Section 359 of the Criminal Law Consolidation Act 1935.
[3] (2004) 89 SASR 270, 273 – 288 [4] – [34].
[4] R v C (2004) 89 SASR 270, 274 [11] (Doyle CJ).
It is clear enough that in exercising the discretion to admit further evidence the Full Court must have regard to two broad considerations: the public interest in the finality of litigation which demands that parties take all reasonable steps to put all material evidence before the sentencing court and the likelihood that the further material would have had an important influence on the result of the case.[5]
[5] R v Dorning (1981) 27 SASR 481, 485.
The diagnosis that Ms G suffered postpartum depression could have, and should have, been obtained and put before the sentencing Judge. The material which was before the sentencing Judge raised a real likelihood that Ms G suffered from that or other related depressive conditions. In the ordinary course the first broad consideration to which I referred in the preceding paragraph would preclude receipt of the material. It is important that a defendant’s legal representatives ensure that all of the applicable sentencing considerations are properly supported by evidentiary material and submissions placed before the sentencing court. The failure to do so puts an unnecessary strain on the resources of the criminal justice system. More importantly, the failure to do so compromises the administration of criminal justice generally, and the public interest in the expeditious resolution of criminal matters in particular. The ordinary sentencing process would be inverted and undermined if material about the consequences of incarceration after sentence has been imposed were routinely received on appeal. The heavy focus on the subjective consequences of imprisonment on the particular prisoner, which is an inevitable consequence of that inversion of the process, will tend to cause distortions between sentencing at first instance and on appeal.
In my view, to satisfy the second broad consideration to which I referred the further evidence must substantially alter the relative weight of the material which was before the sentencing judge. Surprisingly, in my view, it appears to be an open question whether, if received, the further evidence is to be treated as relevant material which the sentencing court, ex hypothesi, failed to have regard to, allowing the Full Court to resentence, or whether the question is only whether, when measured against the material before the sentencing court and the further evidence, the sentence is manifestly excessive. [6]
[6] R v C (2004) 89 SASR 270, 279 [32]; R v Brain (1999) 74 SASR 92, 105 – 107 [92] – [93].
Evidence of the effectuation of contingencies which were within the contemplation of the sentencing court will not, generally, be admitted on appeal against sentence. There is here an analogy with appeals against awards of damages. Evidence is admitted on an appeal against the award of damages only when the further evidence falsifies an assumption, or radically changes the contemplated circumstances, on which the award was based.[7]
[7] Spargov Greatorex (1992) 59 SASR 1, 16 – 20. In R v J (1992) 59 SASR 145, King CJ adopted a similar approach on a prosecution appeal against sentence where the defendant had not honoured an undertaking to co-operate in the prosecution of others. King CJ said “I agree that this Court has power to receive evidence of events occurring subsequent to sentence which have the effect of falsifying the basis upon which sentence has been imposed. It is a power to be exercised sparingly and with great circumspection. Ordinarily the Court of Criminal Appeal is concerned only with the question whether the sentence was correct on the information before the sentencing judge. It may nevertheless in exceptional circumstances vary a sentence in the light of events subsequently occurring.”
In my view, the further evidence tendered by the appellant does not substantially alter the balance of the sentencing considerations on the question of suspension. On the basis of the sentencing material to which I referred in [ ], it must have been contemplated at the time the sentencing submissions were made that Ms G would be psychologically distressed and financially embarrassed by the imprisonment of the appellant. I accept that Ms G’s suicidal ideation is unexpected and is a matter of serious concern. However, Ms G herself has described her intention to self-harm as “low” and the psychologist has not expressed any concern that the risk is significant. Rather, the psychologist has emphasised the detriment to the emotional development of the children and P in particular.
The psychologist’s report makes the obvious point that the best care and support that can be provided for Ms G and her children would be through the return of the appellant to the family home. That can be readily accepted. However, the report fails to give any prognosis for the supportive therapeutic regime on which Ms G has embarked. It may well be that with supportive psychological therapy Ms G will make some recovery and the emotional care of her children will improve.
Applying the two broad considerations I have identified to the circumstances of this appeal, I am not persuaded that the psychologist’s report should be received.
I indicate that even if I were persuaded to receive the report I would not have allowed the appeal. In my view, the decision not to suspend was not wrong even having regard to the material in the psychologist’s report. The course of domestic violence constituted by the offences of which the appellant was convicted is extremely serious. The appellant pleaded not guilty and has not shown any remorse. Indeed, in the interview with the psychologist Mr Fugler, the appellant admitted to no more than having given his former partner Ms B “a backhander every now and again.”
It is often observed that sentences of imprisonment necessarily impose hardship upon the dependants of a convicted person.[8] In R v Wirth,[9] Bray CJ thought that it would be patently unjust if two people accused of the same crime, in the same circumstances, with no other differentiating factor were to receive different sentences because of the effect of the sentence on the family of one. Bray CJ accepted that it may be that in “extreme cases” the Court could take into account the effect of the sentence, but he found it difficult to envisage any circumstance where it would be logical to do so. In my view, the injustice which concerned Bray CJ would be compounded if the sentences of like offenders were to be further differentiated on appeals brought against sentences on the basis of the different reactions of the offenders’ families to their incarceration. I do not mean to preclude the possibility of a reduction in sentence because of the serious and unexpected consequences on an offender’s family of his or her imprisonment. I simply wish to emphasise the reasons why caution must be exercised before doing so.
[8] See Sullivan v The Queen [1975] Tas SR 146 (Green CJ); R v Wirth (1976) 14 SASR 291, 296.
[9] (1976) 14 SASR 291.
Notwithstanding the observations of Bray CJ in R v Wirth,[10] Wells J accepted that hardship to an offender’s family ought to be taken into account in highly exceptional circumstances where it would be inhuman to refuse to do so.[11] The exception articulated by Wells J has been applied in many cases since.[12]
[10] (1976) 14 SASR 291.
[11] R v Wirth (1976) 14 SASR 291, 296.
[12] R v Moffa (No 2) (1977) 16 SASR 155; R v Spiers (1983) 34 SASR 546; Boyle v The Queen (1987) 34 A Crim R 202; R v Maslen (1995) 79 A Crim R 199. Cf R v Wayne (1982) 62 A Crim R 1; R v Amuso (1987) 32 A Crim R 308; Stewart v The Queen (1994) 72 A Crim R 17.
In my view, where a plea is made to mitigate a sentence on the grounds that it will adversely affect an offender’s family, the court must necessarily weigh the public interest in imposing a sentence which sufficiently serves the purposes of punishment and deterrence against the public interest in the welfare of the children and dependents of the offender.[13] The offender’s failure to discharge his or her duty to them does not extinguish the public interest in their welfare. The welfare of children is a matter of public interest of the highest importance.[14]
[13] Neill v Police [1999] SASC 270, [24].
[14] Family Law Act 1975 (Cth) s 60CA; Walsh v Department of Social Security (1996) 67 SASR 143, 147; Hillman v Black (1996) 67 SASR 490, 518; Jones v Dodd (1999) 73 SASR 328, 338 [62].
I would take the approach that the welfare of the children of an offender who faces imprisonment is always a relevant consideration but, in the general run of cases, the ordinary consequences of imprisonment will not justify the imposition of a sentence which falls below the range which would otherwise be appropriate. Equally, the consequences of an offender’s imprisonment on his or her family will not, generally, demand the suspension of a sentence which would otherwise be served immediately. However, the effects of the imprisonment of an offender on his or her children, or other dependents, must be considered in the circumstances of each case and an appropriate balance struck between their welfare and the need to protect the community.
In sentencing offenders for repeated acts of domestic violence committed over protracted periods of time, deterrence is a paramount consideration. The protection of women from physical harm and from the psychological scars it leaves on them, and their children, is a primary concern of sentencing courts in such cases. The predicament of Ms G and her children is a difficult and a sad one. However, it is not of an order which would justify a reversal of the sentencing Judge’s decision not to suspend.
I would dismiss the appeal
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