R v FRANCIS

Case [2012] SASCFC 50

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 50

Court of Criminal Appeal:       Doyle CJ, Vanstone and Kourakis JJ

  1. DOYLE CJ:          I would dismiss the appeal against sentence.  I agree with the reasons of Kourakis J.

  2. VANSTONE J:     I would dismiss the appeal.  I agree with the reasons of Kourakis J.

  3. 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).

  4. The offences…

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R v Francis [2012] SASCFC 50
Case
[2012] SASCFC 50
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, who had been found guilty by a jury of assault occasioning actual bodily harm, two counts of aggravated assault, and five counts of aggravated threatening harm against his former domestic partner. The sentencing judge imposed a four-year term of imprisonment with a non-parole period of 15 months, refusing to suspend the sentence due to the seriousness of the offences. The appeal was heard by Doyle CJ, Vanstone and Kourakis JJ.

The primary legal issues before the Full Court were whether fresh evidence, in the form of a psychologist's report concerning the wellbeing of the appellant's current partner and infant child, should be received on appeal, and whether the sentencing judge erred in the exercise of their discretion by not suspending the sentence.

The Court held that the fresh evidence should not be received. Applying the principles established in *R v C*, the Court considered the public interest in the finality of litigation and the likelihood that the further material would have had an important influence on the sentencing decision. The Court found that the psychologist's report, which suggested the appellant's return to the family home would best meet the emotional needs of his current partner and children, did not substantially alter the sentencing considerations that were before the sentencing judge. The Court noted that the diagnosis of postpartum depression could and should have been obtained and presented to the sentencing judge, and that receiving such material after sentence had been imposed would undermine the ordinary sentencing process. Consequently, the Court concluded that the sentencing judge did not err in their decision not to suspend the sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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