R v Hallett - [2012] SASCFC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HALLETT
[2012] SASCFC 143
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice White)
20 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES - SENTENCE
Appeal against sentence - appellant found guilty by jury verdict of the offence of arson contrary to section 85(1) of the Criminal Law Consolidation Act 1935 (SA) - appellant sentenced to a head sentence of four years and six months imprisonment with a non-parole period of 18 months - where the appellant was aged 19 years at the time of the offending, came from a disadvantaged background and suffered from mental illness and cognitive disadvantages - whether the sentence was manifestly excessive - whether a psychiatric report should be received as further evidence.
Held per Gray J (Kourakis CJ concurring): Appeal allowed - sentence imposed by the sentencing Judge set aside - appellant resentenced to a head sentence of three years imprisonment with a non-parole period of one year - sentence suspended upon entry into a three year good behaviour bond with conditions.
Held per Kourakis CJ: The exercise of the discretion by the Judge to suspend the sentence was affected by an error of law – there was a proper basis in the appellant’s circumstances to exercise the discretion to suspend.
Held per Gray J: Sentence imposed was manifestly excessive - sentencing Judge failed to give adequate weight to the appellant's personal antecedents, in particular, her youth, her cognitive impairments and her mental illness.
Held per White J (dissenting): Given that the appellant is receiving an appropriate medication regime, imprisonment will not be a greater burden on her by reason of her mental condition - there is no serious risk of imprisonment having a gravely adverse effect on the appellant’s health - the non-parole period fixed by the Judge was not excessive and the Judge did not err in failing to order suspension of the sentence.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - TO CONSIDER FRESH EVIDENCE
Held per Gray J: The evidence of the psychiatrist should be received as further evidence - that evidence sheds new light on the mental state of the appellant - the interests of justice would be served by the reception of that evidence.
Held per White J: The fresh evidence should not be received because it could have been obtained with reasonable diligence for use before the sentencing Judge, and it is not probable that the evidence would have had an important influence on the result of the case.
Criminal Law Consolidation Act 1935 (SA) s 85, s 340, s 353 and s 359; Criminal Law (Sentencing) Act 1988 (SA) s 10 and s 38; Supreme Court Civil Rules 2006 (SA) r 286, referred to.
R v Kikidis [2012] SASCFC 3; R v C (2004) 89 SASR 270 , applied.
R v McIntee (1985) 38 SASR 432; R v Smith (1987) 44 SASR 587; CDJ v VAJ (1998) 197 CLR 172; R v Jewell [2006] SASC 128; Lowndes v The Queen (1999) 195 CLR 665; R v Nemer (2003) 87 SASR 168; Dinsdale v The Queen (2000) 202 CLR 321; R v James (1981) 27 SASR 348; R v Davies (2006) 164 A Crim R 353; R v Mooney (1978) (Unreported, Supreme Court of Victoria, Young CJ, Lush and Jenkinson JJ, 21 July 1978); Muldrock v The Queen (2011) 244 CLR 120; R v Wiskich (2000) 207 LSJS 431; R v Tsiaras [1996] 1 VR 398; R v Tran [2008] VSCA 80; Maione v Police [2007] SASC 116; Mason-Stuart v The Queen (1993) 61 SASR 204; R v Tomlinson [2007] SASC 222; Nguyen v Police [2009] SASC 255; W,NJ v Police (2009) 197 A Crim R 143; R v Skilbeck [2010] SASCFC 35; Twigden v Centrelink (2010) 269 LSJS 512; R v Anderson (1980) 2 A Crim R 379; R v Goldsmith (1995) 65 SASR 373; R v Spinks (1996) 185 LSJS 141; R v Ireland [2012] SASCFC 120; R v Pham [2003] SASC 386; R v Ford (2008) 100 SASR 94; Markarian v The Queen (2005) 228 CLR 357; R v McGaffin [2010] SASCFC 22; R v Clifford [2010] SASCFC 10; R v Dorning (1981) 27 SASR 481; R v Araya (1992) 63 A Crim R 123; Green v The King (1939) 61 CLR 167, considered.

R v HALLETT
[2012] SASCFC 143
Court of Criminal Appeal: Kourakis CJ, Gray and White JJ

KOURAKIS CJ: I would hold that the Judge’s exercise of the discretion miscarried because His Honour failed to recognise that the appellant’s youth and poor mental health were strong reasons to suspend the appellant’s imprisonment.
The Judge referred to the appellant’s traumatic childhood experiences, her drug abuse, intellectual disability and poor mental health in his general remarks. However, when he came to consider the particular question of suspension, the Judge said:
In the case of Spinks[1] the Court of Criminal Appeal decided that a similar sentence for the offence of arson should be suspended. However, in that case the defendant had a good record, was contrite and showed good prospects of rehabilitation. The factors which justified suspension in that case are absent in your case.
You have shown no contrition. There is no reason to suspend the sentence. You must serve the sentence.
(emphasis added)
[1] R v Spinks (1996) 185 LSJS 141.
It is not obvious to me why the Judge limited his consideration to the contrast between the circumstances which resulted in the suspension in Spinks and the appellant’s circumstances. This was a very different case and the appellant’s claim to leniency arose from very different circumstances. The relevant question was not a comparison of her circumstances to those which were found in Spinks. The question was whether her age, her disabilities and her deprived youth were good reasons to spare her imprisonment and to pursue instead a community based rehabilitative sentence.
There was a proper basis in the appellant’s circumstances for a favourable exercise of the discretion. The decision to be made was finely balanced. I am satisfied that the Judge’s remark that there were “no reasons to suspend”, and his failure to expressly advert to the proper reasons which did exist for suspension, show that he did not address the question. Alternatively, if he did, his reasons for deciding the issue adversely to the appellant are inadequate because they do no more than state his conclusion.
It follows that the exercise of the discretion by the Judge is affected by an error of law. The appellant should be sentenced by this Court. For the reasons given by Gray J, I would impose a sentence of 3 years with a non-parole period of 1 year. I would suspend the sentence on the conditions he proposes.
In the view that I have taken, it is not strictly necessary for me to deal with the tender of the report of Dr Begg. However, having regard to the different views which have been expressed by Gray J and White J, it is appropriate that I indicate my view.
The receipt of evidence on an appeal is not limited by the conditions which the common law imposed on the receipt of fresh evidence on a common law motion for a new trial.[2] On an appeal, the discretion to receive further evidence can be exercised on wider grounds. However, the “interests of justice” are not to be determined subjectively and include, as an important consideration, the finality of litigation. This question has recently been considered in this Court in R v Kikidis [2012] SASCFC 3 and R v C (2004) 89 SASR 270. Applying the principles therein stated, I would hold that the report of Dr Begg should not be received, both because it could have been obtained before sentencing, and in any event does not substantially alter the balance of sentencing considerations.
[2] CDJ v VAJ (1998) 197 CLR 172.
Finally, I indicate that I share the concerns about access to prisoners by health professionals expressed by Gray J and White J. I am confident that the policy of the Department of Correctional Services is to facilitate such access. It is important that that policy is fully implemented by the officers who operate the prisons.
I would allow the appeal and join in the orders proposed by Gray J.
GRAY J.
This is an appeal against sentence.
Samantha Lillian Hallett, the defendant and appellant, was charged with the offence of arson contrary to section 85(1) of the Criminal Law Consolidation Act 1935 (SA).[3] On 31 May 2012, she was found guilty by jury verdict in the District Court.
[3] Section 85(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
(1)A person who, without lawful excuse, by fire or explosives, damages property that is a building or motor vehicle (whether the property belongs to the person or to another)—
(a) intending to damage property; or
(b)being recklessly indifferent as to whether his or her conduct damages property,
is guilty of arson.
Maximum penalty: Imprisonment for life.
On 7 September 2012, the defendant was sentenced by the trial Judge to a head sentence of four years and six months imprisonment with a non-parole period of 18 months. The Judge did not suspend the sentence.
This appeal raises issues of some complexity. The defendant was aged 19 years at the time of the offence. She came from a disadvantaged background, had been subject to sexual and other abuse and spent several years as a street child. She suffers cognitive disadvantages as well as a number of serious mental illnesses. The appeal has been further complicated by an application to admit a psychiatric opinion obtained subsequent to sentencing as further evidence. This is a sad case.
I consider that the sentence imposed was manifestly excessive. I have reached the conclusion that the sentencing Judge failed to give adequate weight to the defendant’s personal antecedents, in particular, her youth, her cognitive impairments and her mental illness. I would set aside the sentence imposed and resentence the defendant. In any event, I consider that the evidence of the psychiatrist should be received as further evidence. My reasons follow.
Facts
On 10 August 2010, fire caused extensive damage to a maisonette style house being rented by the defendant from Housing SA. Approximately $80,000.00 damage was caused by the fire.
At the time of the offending, the defendant was aged 19 years, suffered from a degree of cognitive impairment, was mentally ill and was emotionally unstable. She has a long history of mental illness. The defendant was diagnosed with severe depression and an attention deficit hyperactivity disorder in September 2003. She was further diagnosed with schizophrenia and a bipolar disorder in September 2010.
Psychological assessment in November 2010 indicated that the defendant had cognitive problems and functioned in the bottom one per cent of the age equivalent population. Her problem solving skills were especially poor and equivalent to those of an average seven and a half year old child. Examination at that time revealed an emotionally unstable person. The reporting psychologist, Dr White, noted that her profile included significantly elevated measures of somatisation, cognitive anxiety, psychological anxiety, traumatic stress, depression, irritability, paranoia, schizophrenia, affective instability, negative relationships, self-harm, antisocial behaviour and alcohol and drug problems.
The psychologist considered, having regard to all relevant matters, that a number of diagnostic hypotheses were supported, namely mental retardation, alcohol abuse, cannabis dependence, amphetamine dependence, post-traumatic stress disorder, adjustment disorder with mixed anxiety and depressed mood, schizophrenic disorder, antisocial personality disorder and a borderline personality disorder. Although this opinion was expressed following her offending conduct in August 2010, it may be concluded that this opinion was broadly indicative of her mental problems at the time of the offending.
Prior to the fire, the defendant had been in a dispute with Housing SA about her request that she be provided with alternative accommodation. The defendant had also been in a dispute with the persons occupying the adjoining premises.
During her evidence at trial, the defendant denied any involvement in the offending and provided an alibi for the time of the offence. The defendant continues to maintain her innocence.
At about 11:00 pm on 10 August 2010, a person was seen at the defendant’s premises by a neighbour who resided across the road. The person was seen to be pushing a pram down the driveway of her premises. The pram appeared to contain personal belongings. The neighbour saw the person re-enter the house through the front door. A short time later, the same neighbour saw a fire at the defendant’s premises and notified the authorities. The person exited the premises through the front door and ran away. The neighbour identified the person as the defendant.
Officers from the Metropolitan Fire Service arrived at the scene. They found that the doors and windows to the defendant’s premises were locked. The fire was subsequently found to have been deliberately lit. It was said to have started on a lounge chair and the fire increased because the gas on the oven was turned on. A bottle containing a wick and petrol was also discovered. The prosecution suggested that this was an indication of an unsuccessful attempt to start a fire.
The Sentencing Judge’s Remarks
In his sentencing remarks, the Judge considered two psychological reports from Dr White, one as a result of the earlier examination in November 2010 and the other prepared shortly before sentencing. The Judge also had regard to the defendant’s criminal antecedents and her personal circumstances:
I have taken into account the submissions of your counsel and the contents of two psychological reports by Dr Jack White. Your counsel submitted that you are a good candidate for a suspended sentence.
You have seven prior court appearances. On 4 July 2011 you were convicted of the offences of damaging a building or motor vehicle and aggravated assault causing harm and were sentenced to imprisonment for six months. The sentence was suspended upon your entering into a bond to be of good behaviour for three years. Those offences had been committed in April 2010.
Dr White has written two reports, one dated 3 November 2010 and the other dated 13 July 2012. They refer to your extremely traumatic childhood and to the fact that you had mental health problems when aged 12. You were raped at the age of 13 and again at the age of 16.
You have abused cannabis since the age of 11 and abused methylamphetamine and alcohol since the age of 16.
At the age of 16 you left home and school and lived on the street for two years. At the age of 18 you had a son who was taken from your custody in August 2010 when your mental health declined. That precipitated a breakdown in your emotional state.
The psychological assessment conducted by Dr White demonstrated significant cognitive problems and emotional instability. He wrote that your symptoms were complex and that a number of serious conditions were indicated. The prosecutor submitted that those conditions, serious as they are, could be treated in custody. I accept that submission.
You have a good relationship with your two year-old son whom you see on a fortnightly basis. You told Dr White that you were living by yourself in a two‑bedroom rented unit. A letter from a land agent describes you as a good tenant.
You receive the disability support pension based on mental health criteria.
You told Dr White that you were a mild user of alcohol and cannabis but, hopefully, had stopped using amphetamines.
The Judge addressed the seriousness of the offending:
The prosecutor submitted that you were guilty of a violent and dangerous act which endangered the neighbouring properties. The fact that the gas oven had been turned on put the safety of persons at risk. The prosecutor referred to the Sentencing Act which states that a primary policy of the criminal law in cases of arson is to bring home to the offender the extreme gravity of the offending. General deterrence is an important consideration.
The prosecutor submitted that the offending is too serious for the sentence to be suspended.
The Judge concluded:
You will be sentenced to imprisonment for four years and six months. I fix a non-parole period of 18 months.
In the case of Spinks[4] the Court of Criminal Appeal decided that a similar sentence for the offence of arson should be suspended. However, in that case the defendant had a good record, was contrite and showed good prospects of rehabilitation. The factors which justified suspension in that case are absent in your case.
You have shown no contrition. There is no reason to suspend the sentence. You must serve the sentence.
[4] (1996) 185 LSJS 141.
The Appeal
On appeal, the defendant contended that the head sentence and non-parole period were manifestly excessive and that the sentencing Judge erred in not suspending the term of imprisonment. The defendant also sought to adduce further evidence. This application was opposed by the Director of Public Prosecutions. I will first address the proposed further evidence.
Further Evidence
The further evidence which the defendant sought to have admitted was an affidavit of the defendant’s instructing solicitor, John Mattner, sworn on 19 November 2012 and a psychiatric report of Jules Begg dated 16 November 2012. The affidavit of Mr Mattner sets out the difficulties in obtaining legal aid funding and then in engaging a psychiatrist to prepare a report about the defendant.
Appeals against sentence are pursuant to the statutory jurisdiction of the Court under sections 340 and 353(4) of the Criminal Law Consolidation Act. Sections 340, 353(4) and 353(5) provide:
340—Appeal against sentence
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a)     impose the sentence that should have been imposed in the first instance; and
(b)     order that the sentence—
(i)    will be taken to have come into effect on a date before the date of the order; or
(ii)    will take effect on a date on or after the date of the order.
…
353—Determination of appeals in ordinary cases
…
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
(5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
It is to be noted that none of these provisions address the reception of further evidence on appeals against sentence. It might be expected that this would, in any event, be a necessary indictment to the court’s powers as set out above. However, the matter is addressed indirectly through section 359(f)[5] of the Criminal Law Consolidation Act:
For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice—
…
exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters; …
[5] See also sections 359(b) and 359(c) of the Criminal Law Consolidation Act 1935 (SA).

In the civil jurisdiction, the reception of further evidence is governed by rule 286 of the Supreme Court Civil Rules 2006 (SA) which relevantly provides that the Supreme Court may, in its discretion, hear further evidence on a question of fact.[6] This is a broad discretion, although rules of practice have been developed to assist the Court in the exercise of the discretion in a particular case.
[6]    Rule 286 of the Supreme Court Rules 2006 (SA) is in the following terms:
(1)An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)Subject to any limitation on its powers arising apart from these rules, the Court may—
(a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)    amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)     remit the case or part of the case for rehearing or reconsideration;
(d)    make orders for the costs of the appeal.
A comparable provision was considered in CDJ v VAJ[7] where the High Court discussed the approach to be taken to the reception of further evidence on appeal. McHugh, Gummow and Callinan JJ considered that the terms of a statutory right to appeal determined the nature of the appeal and the right, if any, to adduce further evidence. The power to receive further evidence is regulated by the statutory provision and not by common law doctrines. The statutory power under consideration was in relevantly similar terms to the South Australian rule. Their Honours observed:[8]
[7]    CDJ v VAJ (1998) 197 CLR 172.
[8]    CDJ v VAJ (1998) 197 CLR 172, [109]-[110].
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Another consideration is the effect of the principle that a provision conferring judicial power upon a court should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by the legislature. That is so whether the limitation derives from the common law principles governing the grant of new trials upon proof of fresh evidence or from some other source ...
[Footnotes omitted. Emphasis added.]
McHugh, Gummow and Callinan JJ continued:[9]
… Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
...
No doubt the Full Court will readily admit further evidence which is not in dispute and which the court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings reheard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. ...
…
The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
[Emphasis added.]
[9]    CDJ v VAJ (1998) 197 CLR 172, [111], [114], [116].
The discretion conferred by rule 286 to receive further evidence on appeal is not subject to any specific limitation. However, the rule is subject to any limitation on its powers arising apart from the Supreme Court Civil Rules. The rule does not require that special grounds be shown before the evidence can be adduced.
This analysis of the relevant statutory provisions allows the conclusion that there is a general unfettered discretion for the Court of Criminal Appeal to receive further evidence in the hearing of appeals against sentence.
It is against this background that it is convenient to turn to the approach taken by this Court to the reception of further evidence on sentence appeals. In McIntee, King CJ discussed the purpose of further evidence:[10]
The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand. …
In Smith, King CJ further observed:[11]
… 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. …
[10] R v McIntee (1985) 38 SASR 432, 435.
[11] R v Smith (1987) 44 SASR 587, 588.
The following rules of practice have been developed in several authorities of this Court:
-The power to receive further evidence on appeal should be exercised with caution bearing in mind that that power exists to serve the interests of justice.
-The purpose of receiving further evidence on appeal is to shed new light on facts which were before the sentencing Judge or to inform the appeal court of facts which were in existence at the time that the sentence was imposed but were unknown to the sentencing Judge.
-An adequate explanation for the failure to bring those facts to the sentencing Judge’s attention should be provided.
-The court should be satisfied that the evidence could not have been obtained with reasonable diligence for use at the trial.
-The evidence should be such that it would probably have an important influence on the result of the case. However, it need not be decisive.
-The court should not receive further evidence about events which occurred after the imposition of sentence except where such further evidence shows the true significance of facts which were in existence at the time of sentencing.
All of the above rules of practice are subservient to the overriding principle that evidence will be received on appeal if a failure to do so would result in an unjust sentence having been imposed.
In the within proceeding, the Judge had before him two reports by a psychologist, Dr White. The defendant submitted that these two reports established the following matters:
-That the defendant had “significant mental health problems” and “was not dealing with them very effectively”.
-That the defendant had issues associated with intellectual disability and substance abuse as well as post traumatic stress disorder, adjustment disorder with mixed anxiety and depressed mood and a schizophrenic disorder.
-That the defendant had “psychological problems in areas of anxiety, traumatic stress, depression, paranoia, psychotic experiences, emotional instability and substance abuse”.
-That “[i]t was likely that the complexity of her problems will require a team combination of mental health skills in managing her condition”. In this respect, Dr White recommended that mental health resources from the Lyell McEwin Hospital be combined with community resources to assist in the defendant’s overall management.
-That the defendant’s “profile was consistent with that of a person who had significant mental health problems and who was not dealing with them very effectively”.
-That “[t]he current assessment indicated that the [defendant’s] general mental health problems had deteriorated since the previous assessment.” The effect of the criminal trial and the defendant’s involvement with her son did not detract from this overall assessment.
-That the defendant’s symptoms associated with schizophrenia and depression had elevated.
-That Dr White “strongly recommended” that the defendant be further psychiatrically reviewed in relation to treatment for her psychotic symptoms with appropriate medication.
-That Dr White opined that future management would present many “significant challenges”.
-That Dr White was of the view that “future rehabilitation will need to address these elements in order to potentially reduce the likelihood of [the defendant] decompensating further, and placing herself at increased risk for offending behaviour.”
Dr Begg, a psychiatrist, reported on 16 November 2012:
It is therefore my opinion that in addition to her low intellect, she does suffer from a Schizophrenic Disorder. The disorganization accompanying the schizophrenia has impaired her ability to manage easily in society. It is making it difficult for her to manage in the prison environment. She has increased paranoid ideas, but has not completely broken down into a psychotic state, and although distressed by her experience, I did not consider her at high risk of suicide.
The treatment of schizophrenic disorders in people with low IQ is particularly difficult as there is little inherent capacity to manage the stresses of illness. Whilst medication is the mainstay of medical input to prevent worsening of psychosis, an optimal outcome is achieved by the addition of psycho-social support. All too commonly is found a loss of social networks, exploitation by unscrupulous people including drug dealers, with resultant drug abuse problems. There is usually occupational and educational failure. A comprehensive treatment plan includes the provision of medication, which she can receive inside or outside the prison, psychological intervention and social work intervention to establish and maintain social networks. The provision of stable accommodation, activities during the day and assistance in learning the necessary skills to negotiate life in society requires case management by the Mental Health Service. This is not available in the prison environment.
In summary therefore, in addition to the low intellect, I believe [the defendant] does suffer from a Schizophrenic Disorder, and whilst the psychotic aspects of that disorder are reasonably well controlled on her current medication regime, there is not attention to the psychological or sociological factors that are an important determinant of long term outcome in such disorders.
[Emphasis added.]
Attention was drawn to the diagnosis of schizophrenia and the difficulties the defendant encountered in managing in prison. Counsel for the defendant highlighted parts of the above extract from Dr Begg’s report. Particular emphasis was placed on the conclusion that “[t]his is not available in the prison environment” as well as on the final paragraph. It was said that the Court, in sentencing, had to assume that the defendant’s “potpourri” of mental health and other ailments would be dealt with by the Department of Correctional Services. However, it was said that, despite the defendant’s broader needs, nothing other than the provision of medication was occurring. It was on this basis that the defendant sought the admission of the further evidence.
As earlier noted, an important matter for the Court when considering the reception of further evidence are the circumstances that provide an explanation for the failure to have adduced the evidence before the sentencing Judge. Where, for example, the evidence has been deliberately withheld, that fact will weigh heavily in the exercise of the discretion. However, as pointed out by the members of the High Court in CDJ v VAJ,[12] much will depend on the circumstances of the particular case and even a failure to call evidence which could have been discovered by the exercise of reasonable diligence may be of little significance. Against this background, I now address the circumstances relevant to the present application.
[12] CDJ v VAJ (1998) 197 CLR 172.
It appears to be accepted that legal aid is chronically underfunded. Practitioners acting for legally aided clients receive limited professional fees. The system does not cope well with the expenses associated with the cost of psychological and specialist medical examinations and reports. It is to be accepted that solicitors and counsel acting for a legally aided client have a duty to obtain and present all relevant information to the court in support of their client’s plea. However, this duty does not exist in the abstract. It does not extend to the incurring of disbursements without authority or any prospect of reimbursement.
This is a difficult and complex problem and understandably, the absence of proper funding may give rise to injustices from time to time, particularly with respect to sentencing matters. The Court does, where possible, have regard to these difficulties when considering the exercise of discretions that may impact on the liberty of a defendant. In the present proceeding, it appears that these problems were present. They were compounded by the circumstances of the defendant – a teenager at the time of the offending and a person with significant cognitive disabilities and mental illnesses.
The rules of practice concerning the admission of further evidence are to be addressed in the present case with the above circumstances being borne in mind. When this is understood, it may be seen that this is a case where the interests of justice in the determination of an appropriate sentence outweighs the public interest in finality of the litigation process.
In the present appeal, affidavit evidence explained the delay in obtaining a psychiatric report. The report of Dr Begg does shed new light on the mental state of the defendant. It is to be accepted that the psychological reports indicated the probability that the defendant suffered from a mental illness. However the diagnosis is within the expertise of a psychiatrist. Dr Begg has opined that the defendant does suffer from mental illness and in particular from a schizophrenic disorder. Dr Begg considers that appropriate medication treatment is available to the defendant while in custody, but that a necessary comprehensive treatment program, including psycho-social support, is not available within the prison system. In particular, as noted above, Dr Begg observed:
A comprehensive treatment plan includes the provision of medication, which she can receive inside or outside the prison, psychological intervention and social work intervention to establish and maintain social networks. The provision of stable accommodation, activities during the day and assistance in learning the necessary skills to negotiate life in society requires case management by the Mental Health Service. This is not available in the prison environment.
The provision of the recommended program is critical for the rehabilitation of the defendant.
The further evidence provides information that assists the Court in determining the need for personal deterrence as an aspect of the defendant’s rehabilitation. As a consequence of the defendant’s cognitive disadvantages and her mental health issues, Dr Begg has identified that medication may be available and sufficient to stop her developing into a psychotic state. However, the prison environment is not equipped to address her rehabilitation. Undoubtedly, to my mind, Dr Begg’s psychiatric report sheds new light on facts that were before the sentencing Judge.
In the circumstances, I would set aside the sentence imposed by the Judge and resentence the defendant. The interests of justice would be served by the reception of Dr Begg’s report. For these reasons, I would admit the further evidence.
Manifestly Excessive Sentence
It is not strictly necessary to address this complaint. The further evidence when received is material and relevant to sentencing and was not considered by the sentencing Judge. However, as the matter has been fully argued, it is appropriate I express my reasons for considering the sentence to have been manifestly excessive.
The circumstances in which an appellate court will interfere with the exercise of the sentencing discretion are limited.[13] An appeal court will not interfere with the sentence on the basis that if it had been in the position of the sentencing Judge it would have exercised its sentencing discretion differently or imposed a different sentence. In Lowndes, the High Court observed:[14]
The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
[Footnotes omitted.]
[13] See, R v Jewell [2006] SASC 128.
[14] Lowndes v The Queen (1999) 195 CLR 665, [15].
An appeal court will only interfere with the sentence if an express or implied error can be demonstrated such that the sentence is found to be manifestly inadequate or manifestly excessive or there has been a miscarriage of justice warranting intervention by the appellate court.[15]
[15] R v Nemer (2003) 87 SASR 168; Dinsdale v The Queen (2000) 202 CLR 321.
As mentioned earlier, the maximum penalty for the offence of arson contrary to section 85(1) of the Criminal Law Consolidation Act is imprisonment for life. There is no tariff or fixed penalty range applicable to sentencing for arson.[16] The seriousness of an offence of arson was described in the joint judgment of Walters, Zelling and Williams JJ in James:[17]
… It seems to us that ordinarily a substantial sentence of imprisonment is called for by reference to the immediate gravity of the crime and its consequences. Arson, in all its forms, is an extremely serious and dangerous crime, and the element of general deterrence must be given proper weight, in order to reflect the Court's condemnation of the crime, especially where it is committed with an appreciation of what is being done and there is a calculated act of vengeance. …
[16] R v James (1981) 27 SASR 348, 351; R v Davies (2006) 164 A Crim R 353, [44], [90].
[17] R v James (1981) 27 SASR 348, 351.

Section 10(3) of the Criminal Law (Sentencing) Act 1988 (SA) provides that “[a] primary policy of the criminal law in relation to arson or causing a bushfire is— … to bring home to the offender the extreme gravity of the offence; and … to exact reparation from the offender, to the maximum extent possible under the criminal justice system, for harm done to the community.” It aims to ensure that personal deterrence and reparation are primary goals when sentencing for arson.[18] In determining a sentence, the Court should have regard to the need to give proper effect to this policy.
[18] R v Davies (2006) 164 A Crim R 353, [88]-[89].
The Director submitted that the head sentence and non-parole period were within range and properly reflected: the maximum penalty of life imprisonment; the seriousness of the offending; the fact that the defendant, it was said, must have been aware that the offending was likely to create a risk of physical danger to others, particularly the neighbours in the adjoining unit; the fact that the evidence at trial suggested, it was said, that the offending was motivated by a sense of grievance against Housing SA, or the defendant’s neighbours, or both; the need for personal and general deterrence; the need to give proper effect to the policy described in section 10(3) of the Sentencing Act; the lack of any contrition or remorse on the part of the defendant; the defendant’s continued denial of any involvement in the offending; and the defendant’s antecedent history.
The Director further submitted that the sentencing Judge gave adequate consideration and appropriate weight to the defendant’s age, background and mental health when sentencing the defendant. In particular, it was said that the Judge specifically had regard to the two reports by Dr White which addressed the defendant’s childhood, her mental health issues, her cognitive and emotional functioning and her substance abuse issues. The Director submitted that the sentence was within the sentencing Judge’s discretion and that no error has been identified which suggests that the sentencing Judge’s discretion miscarried warranting intervention by the appellate court.
The defendant would appear to have been motivated to commit the offence of arson at a time when she was suffering from the earlier referred to mental illnesses, including the earlier referred to schizophrenic disorder. It is reasonable to infer that these difficulties were major contributing factors to the defendant’s criminal behaviour. The evidence of the defendant’s mental illness and her cognitive difficulties provide a firm basis for concluding that her criminal culpability was less than as assessed by the sentencing Judge.
Earlier in these reasons, in the extracted sentencing remarks, it is to be noted that the Judge appeared to proceed on the basis that general deterrence was an important consideration. This would appear to overlook the significance of the evidence concerning the mental illnesses suffered by the defendant and her cognitive disadvantages.
Later in these reasons, I set out relevant observations in regard to the sentencing of the mentally ill from the Victorian decision of Mooney[19] which was cited with approval in the recent High Court decision of Muldrock.[20] General deterrence should be given little weight where the offender is mentally ill and, as a consequence, not an appropriate example for others. The sentencing Judge’s attention was not drawn to these observations or to similar comments from this Court in Wiskich,[21] where Martin J made the same point in regard to general deterrence. The observations of Martin J are also extracted below.
[19] R v Mooney (1978) (Unreported, Supreme Court of Victoria, Young CJ, Lush and Jenkinson JJ, 21 July 1978).
[20] Muldrock v The Queen (2011) 244 CLR 120.
[21] R v Wiskich (2000) 207 LSJS 431.
The sentencing Judge’s view that general deterrence was an important consideration demonstrates error. On the one hand, the Judge may have misunderstood the full import of the mental illnesses suffered by the defendant. It is to be accepted that he did not have the assistance of a psychiatric report. However, the reports of the psychologist, Dr White, clearly indicate that the defendant, in all probability, suffered from a number of serious mental illnesses. If, on the other hand, the Judge did understand the full import of this evidence, it follows that the Judge failed to have proper regard to its relevance to sentencing and, in particular, to the need for the sentence to reflect general deterrence. Further, the mental illnesses of the defendant did not stand alone. It was to be borne in mind that she was only 19 years of age when the offence was committed and was suffering from the cognitive disadvantages referred to by Dr White. These factors also place in context the criminal antecedents of the defendant. These errors on the part of the sentencing Judge were material errors that, quite apart from the further evidence, call for this Court to resentence the defendant.
Resentencing by this Court
The circumstances of the offending and the antecedents of the defendant have been discussed earlier in these reasons. Before coming to determine an appropriate sentence to be imposed, it is relevant to highlight several matters.
Age
At the time of the offending, the defendant was 19 years of age. It is well recognised that the Court treats youth as a mitigatory matter and, particularly in the case of a defendant having just obtained their majority, will impose a sentence that advances rehabilitation. In the present case, the defendant’s age masked her state of cognitive development. Dr White in his reports has addressed this matter in detail and it is to be accepted that the defendant suffers from material cognitive disadvantages. This is perhaps best illustrated by Dr White’s assessment of her problem solving skills as being the equivalent of an average seven and a half year old child. I consider that these matters are of particular relevance when considering an appropriate sentence and whether the sentence to be imposed should be suspended.
Mental Health
Counsel for the defendant emphasised the fact that the defendant has serious mental issues which need addressing. To support this, the Court’s attention was drawn to particular aspects of the medical evidence. Counsel also referred the Court to a number of decisions where the psychological or psychiatric health of the offender was relevant to the sentencing process.[22]
[22] See, R v Tsiaras [1996] 1 VR 398; R v Tran [2008] VSCA 80; Maione v Police [2007] SASC 116; R v Wiskich [2000] 207 LSJS 431; Mason-Stuart v The Queen (1993) 61 SASR 204; R v Tomlinson [2007] SASC 222; Nguyen v Police [2009] SASC 255; W,NJ v Police (2009) 197 A Crim R 143; R v Skilbeck [2010] SASCFC 35; Twigden v Centrelink (2010) 269 LSJS 512.
Observations of the Victorian Court of Criminal Appeal from the late 1970s and 1980 provide a convenient starting point. In Anderson,[23] the Court considered the approach to be taken to the sentencing of the mentally ill and in particular, to the inappropriateness of general deterrence. The Court applied its earlier observations in the unreported decision of Mooney[24] from 1978. In particular, the following observations from Mooney were identified and applied:[25]
[23] R v Anderson (1980) 2 A Crim R 379.
[24] R v Mooney (1978) (Unreported, Supreme Court of Victoria, Young CJ, Lush and Jenkinson JJ, 21 June 1978).
[25] R v Anderson (1980) 2 A Crim R 379, 384-385.
In dealing with this ground the Chief Justice said:
This ground may be said to present a problem that is not uncommon in the administration of the criminal law. It arose in a less acute form in Wright, which this Court dealt with on 8th June, 1978. It is a problem that is created whenever evidence of an offender's mental condition is given either on a plea of guilty or after conviction.
It is well established that when a trial judge turns to the task of passing sentence upon an offender convicted by a jury, he is obliged to take "his own view of the facts and to decide how serious the crime is that has been committed, and how severely or leniently he should deal with the offender". See Harris [1961] V.R. 236. But he must not act upon a view of the facts that is inconsistent with the verdict of the jury. On a plea of guilty a sentencing judge is precluded from passing sentence on any basis inconsistent with the conclusion that the offender is legally responsible for the crime to which he has pleaded guilty.
How, then, is a trial judge to sentence an offender who adduces evidence in support of a plea in mitigation to the effect that he was mentally ill at the time of the commission of the offence?
In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight. (Cf. Sentencing the Mentally Disturbed Offender by D. A. Thomas [1965] Crim. L.R. 685. Reference may also be made to an article by Dr. Glanville Williams in [1963] Crim. L.R. 730, at p. 742, although in any reference to practices in other jurisdictions the sentencing alternatives available must be kept in mind. See also and cf. Gascoigne [1964] Qd.R. 539; Kocan (1966) 84 W.N. (Pt 1) (N.S.W.) 588.) General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender's responsibility for the offence should be regarded as having been reduced.
Lush J. said:
The dominant remaining consideration was the deterrence of other persons from committing similar offences. The learned judge was dealing with a case in which substantial violence had been offered to two women police officers in the execution of their duty, and offered in public. In my opinion, these were the considerations which led the learned judge to decide upon the sentence imposed. If these had been the only considerations, I do not think that it would have been possible to find error in his decision.
The concept of the deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Regard to this consideration must, I think, be relevant to the use of the law as an instrument of social administration. Its significance in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
In the present case, a defence of insanity probably could have been made out on Mooney's behalf. That defence not having been taken, the court could not deal with him upon the basis that a disease of the mind had so affected his reason that he did not know what he was doing, or that what he was doing was wrong. It is, however, common experience that evidence of mental states is given upon a plea of guilty, or after conviction. This is necessary and proper, and if in particular cases some appearance of illogicality emerges, that must be accepted as a practical consequence of the disadvantages of advancing a plea of insanity in defence of any charges except the gravest. The sentencing court, however, must proceed upon the basis that the offender has accepted legal responsibility for his offence, either by a plea or verdict. His mental condition, and in particular the possibility that his mental condition in the future may be different from that existing at the time of the offence, remain significant in the determination of what is an appropriate coarse to be adopted in relation to him as an individual and to the protection of the community from him and from those who might be disposed to imitate him.
In my opinion Mooney was, at the time when he was sentenced, an inappropriate person to be made the medium of a deterrent sentence. Moreover, since public sentiment is of significance in this area of the law, I think that sensible people well informed as to the facts would have held that view. Further, in my opinion, that view emerges with sufficient clarity to justify the statement that the learned judge was wrong in ignoring it, and therefore that the sentence imposed by him should be set aside.
Jenkinson J. agreed in what had been said by the Chief Justice and by Lush J. but subject to the observation that "an evaluation of the offender's moral responsibility for his crime is always required in the exercise of the sentencing discretion".
[Emphasis added.]
As mentioned earlier, the High Court cited the principles extracted above with approval in Muldrock.[26] Further, a similar approach was adopted by Martin J in the South Australian decision in Wiskich:[27]
… The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender's thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
[26] Muldrock v The Queen (2011) 244 CLR 120.
[27] R v Wiskich (2000) 207 LSJS 431, [62].
Dr Begg appears to be of the view that the defendant is a good candidate for rehabilitation through a combination of appropriate medication and a psycho-social treatment program. It is to be accepted that the defendant will need considerable assistance in her rehabilitation. That assistance should be provided. It is both in the interests of the community and in the interests of the defendant.
Head Sentence
In determining an appropriate head sentence regard should be had to the circumstances of the offending as outlined above and to the antecedents of the defendant, both personal and criminal.
The offence was serious. It exposed the defendant to a maximum term of imprisonment for life. However, offences of arson do not give rise to any standard range of sentences as the circumstances of the offence are so variable. The defendant’s conduct, to my mind, is explained by the circumstances of her youth, her cognitive difficulties and her mental illnesses. As noted above, she had, according to Dr White, the problem solving skills of an average seven and a half year old. Dr White considered that the defendant met the diagnostic criteria for a number of mental illnesses including schizophrenia. Dr Begg confirmed that she does in fact suffer from schizophrenia. The combination of her circumstances allows the conclusion that her criminal culpability is significantly less than in many other cases before the courts. In the circumstances, I would fix a head sentence of three years imprisonment. The personal circumstances of the defendant call for a merciful non-parole period. I would fix a non-parole period of one year.
Suspension of the Sentence
A sentence of imprisonment may be suspended upon the defendant entering into a bond if the court considers that good reason exists for doing so.[28] A sentencing judge has a well-established discretion when considering the issue of suspension. The test for suspending a sentence is whether or not good reason exists to suspend the sentence. There is no formula as to whether good reason exists and the factors to be taken into account will be different in the particular circumstances of each case. The issue must be considered in light of all the circumstances, including the objective seriousness of the offending and not just the potentially mitigating factors.
[28] See section 38 of the Criminal Law (Sentencing) Act 1988 (SA).
The existence of good reason does not, of itself, indicate the discretion must be exercised in favour of the defendant. The objective seriousness of the offending may outweigh personal mitigating factors, depending on the circumstances of the case.
Counsel for the defendant submitted that although an offence of arson is serious, there are examples of cases in which the sentence of imprisonment has been suspended. In particular, counsel referred to Goldsmith,[29] Spinks[30] and Ireland.[31]
[29] R v Goldsmith (1995) 65 SASR 373.
[30] R v Spinks (1996) 185 LSJS 141.
[31] R v Ireland [2012] SASCFC 120.
Counsel for the defendant contended that while the defendant in the present proceeding lacked the positive personal qualities that applied in Spinks,[32] her personal history is particularly relevant. In particular, counsel submitted that the defendant came from a disadvantaged background and had been subjected to serious sexual abuse. Emphasis was placed on her poor cognitive skills and her mental illnesses.
[32] R v Spinks (1996) 185 LSJS 141.
As Perry J observed in Pham, “good reason” may be apparent from a combination of circumstances.[33] Attention was also drawn to my observations in Ford:[34]
While "good reason" will usually be derived from circumstances personal to the offender, there is no limitation placed on what may amount to a good reason. There must be something about the personal circumstances of the applicant or the offence that would render it inappropriate to imprison the applicant in the circumstances where imprisonment is the appropriate penalty. It is not a matter of finding something special or exceptional, but rather a matter of weighing all relevant factors. …
[Footnote omitted.]
[33] R v Pham [2003] SASC 386, [48].
[34] R v Ford (2008) 100 SASR 94, 107. Doyle CJ concurred with these observations.
In regard to the suspension of the sentence, the Director repeated the submissions set out above in respect of the manifestly excessive ground of appeal. The Director accepted that there were mitigating factors, albeit limited ones, relating to the defendant. However, the Director submitted that it would be inappropriate to suspend the sentence. Ultimately, it was contended that the seriousness of the offending outweighed the mitigating factors.

The report of Dr Begg confirms that appropriate treatment through medication is available to the defendant while in custody. Dr Begg, however, makes the point that the psycho-social support necessary for the defendant’s rehabilitation is not available in custody. While in custody, this aspect of treatment is necessarily deferred. If the seriousness of the defendant’s criminal conduct does call for time to be spent in custody, it is to be borne in mind that the defendant has been in custody for more than three months and, as Dr Begg has observed, she “is still unable to feel safe in the prison environment and is actively excluding herself from contact with other prisoners”.
The circumstances of the offending do not suggest the defendant had the profile of an arsonist. There does not appear to be a need for the sentence to address general deterrence. The difficult issue to my mind is whether the defendant should spend any more time in prison. Dr Begg’s report would suggest that the defendant has not benefited from her prison experience.
I do not consider that the gravity of the crime precludes the exercise of the discretion to suspend. The rehabilitation of the defendant in all the circumstances is best addressed through a suspended sentence. The bond should include appropriate terms to ensure the defendant is properly assisted in her rehabilitation. The bond should be for a three year term, should be supervised and should require the defendant to follow treatment as recommended by a psychiatrist both in respect of the taking of medication and the following through of the psycho-social rehabilitation program. A further term of the bond should require the defendant to undertake such other courses, including anger management and drug and alcohol abuse, as may be recommended.
I would fix a head sentence of three years imprisonment. In fixing this head sentence, I have had regard to the circumstances of the crime and the personal antecedents of the defendant. I consider that a non-parole period of one year should be fixed.
I have reached the conclusion that in accordance with the provisions of section 38 of the Sentencing Act,[35] good reason exists to suspend the sentence of imprisonment. It is in the interests of the defendant and the community that she should be able to commence the treatment plan to address her schizophrenia and other mental illnesses as soon as practicable. In reaching this conclusion, I have had particular regard to the reports of Dr White and Dr Begg.
[35] Section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
A Further Matter
It is relevant to record that Dr Begg encountered considerable difficulty in conducting an interview of the defendant. Dr Begg described these difficulties as follows:
On 9^th November 2012 arrangements were made for me to assess [the defendant] at the Adelaide Women’s Prison at 2.30 p.m. on Friday 16^th November 2012. This date was convenient as I had already arranged to see another prisoner at that location at 1.30 p.m. on behalf of the Court Assessment Service.
I arrived at the prison at 1.35 p.m. and as usual, when I do these assessments, was kindly escorted by the prison staff to the visits area. The escort officer then went to the unit to get the prison. He returned a few minutes later and said that he had gone to take [the defendant] from her unit to the visit centre (a distance of only twenty metres or so), when he had been advised that this was not allowed as the appointment time was 2.30 p.m. I has asked to see [the defendant] first because I anticipated it would be a more complex assessment than my other assessment and for reasons that were unclear; it did not appear that the booking for the first assessment had been made. By now it was 1.45 p.m. and I was effectively being asked to sit in an office alone with no access to my work materials to occupy myself for 45 minutes. In all my years of attending the prison I have never experienced such poor treatment. The escort officer did not appear aware of any matters occurring at the prison that might delay a prisoner transfer. I had to wonder whether how I was being uncharacteristically treated on this occasion may have had something to do with how the prison officers experienced and related to [the defendant]. I was not prepared to be treated in such an unprofessional manner and so left the prison.
I returned to the prison at 230pm. After explaining the purpose of the visit she recalled being collected by the escort officer, but then being told to remain in the unit because apparently the unit was in “lockdown”.
Sentencing courts receive real assistance from the reports of medical specialists and psychologists when engaged in the task of determining the appropriate sentence to be imposed. Dr Begg’s experiences are not unique. Evidence before the Court disclosed that several psychiatrists are simply refusing to attend prisons to examine inmates with a view to the preparation of reports to assist the court in the sentencing process. To say this is an unsatisfactory state of affairs would be an understatement. It is self-evident that medical specialists should not face the difficulties confronted by Dr Begg.
Conclusion
I would allow the appeal, set aside the sentence imposed in the District Court and resentence the defendant to a sentence of imprisonment of three years. I would fix a non-parole period of one year. I would exercise my discretion to suspend the sentence on the defendant’s entry into a supervised three year good behaviour bond on the terms set out above.
WHITE J. A jury found the appellant guilty of the offence of arson.[36] A District Court Judge sentenced her to imprisonment for 4 years and 6 months and fixed a non-parole period of 18 months. He declined to suspend the sentence.
[36] Section 85(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
The appellant appeals against the sentence. She contends first that the sentence is manifestly excessive. Counsel indicated that this complaint related to the non-parole period. Secondly, the appellant contends that the Judge erred by failing to order suspension.
In my opinion, the appeal should fail. My reasons follow.
Background
The offence was committed at about 11.00 pm on 10 August 2010.
The appellant was renting an attached maisonette from the South Australian Housing Trust (SAHT) at Blair Athol. She had been living there with her infant son since May 2010.
A SAHT officer gave evidence that the appellant’s neighbours had complained about her behaviour and that the SAHT had counselled her in consequence. There was also evidence that the appellant was agitating with SAHT her request to be moved to another SAHT property. The prosecution case was that the appellant was disgruntled with the SAHT and that this led her to set fire to the maisonette.
The fire was started on a lounge. At the same time a gas stove was left on but without being lit. This provided an additional fuel source. There was also evidence that before lighting the fire on the lounge, the culprit had attempted to light a fire using petrol and a wick.
A neighbour recognised the appellant walking down the driveway of the house pushing a pram loaded with personal belongings at about 11.00 pm on 10 August 2010. The neighbour also saw her re-enter the maisonette. He then became aware of the fire and saw the appellant running from the premises. The jury’s verdict indicates that it rejected the appellant’s evidence that she was at her mother’s house at relevant times and accordingly that she was not the arsonist. There is no appeal against the conviction.
The fire caused damage estimated at $80,000.
The appellant was 19 years and nine months at the time. She had separated from her child’s father and was subsisting on a disability support pension based on mental health criteria. The appellant’s son was placed in the care and control of the Minister shortly after the arson offence on 10 August 2010. At the time of the sentence, the appellant was seeing him fortnightly.
The Judge’s sentencing decision
After noting the circumstances described above, the Judge noted that the appellant has seven previous court appearances. Three of those appearances occurred after the appellant’s arson offence but related to offences committed before the offence.
On 17 April 2010 the appellant had committed the offences of damaging a building and aggravated assault causing harm. In respect of the latter offence, a Magistrate imposed a sentence of imprisonment for 6 months but suspended it upon the appellant entering into a bond to be of good behaviour for a period of three years. That sentencing occurred on 4 July 2011 and so the appellant’s arson offence did not constitute a breach.
The Judge then noted a number of matters in the appellant’s personal circumstances which excite some sympathy. The appellant is of limited intelligence and educated only to Year 10 level. It is evident that she had an unstable upbringing. She reports being raped at the ages of 13 and 16 by different men. The second was reported to the police. In addition to her cognitive problems the appellant suffers from psychiatric conditions. In the past she has abused cannabis, methamphetamine and alcohol. The Judge had two reports from a psychologist, Dr White, concerning these matters.
The Judge noted that a primary policy of the criminal law in cases of arson is to bring home to the offender the extreme gravity of the offending[37] and that general deterrence is an important consideration.
[37] Criminal Law (Sentencing) Act 1988 (SA), s 10(3).
The Judge distinguished the case of R v Spinks[38] upon which the appellant’s then counsel had relied in support of suspension. He regarded the offending as being too serious to allow suspension and also noted, amongst other things, that the appellant had not shown any contrition for the offence.
[38] (1996) 185 LSJS 141.
Appellate approach
The circumstances in which this Court interferes with the discretionary judgments involved in fixing sentence and in decisions about suspension are limited. It is not simply a matter of this Court reviewing the facts and circumstances and coming to its own decision about sentence and suspension. The reasons of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen[39] indicate the proper approach:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess” or in a prosecution appeal as “manifest inadequacy”.[40]
(Citation omitted)
[39] [2005] HCA 25; (2005) 228 CLR 357.
[40] Ibid at [25]; 370-1.
Consideration
Arson is a serious offence, as evidenced by the maximum penalty of life imprisonment. In R v James[41] Walters, Zelling and Williams JJ, after noting that there is no settled range of penalties for the offence of arson, continued:
It seems to us that ordinarily a substantial sentence of imprisonment is called for by reference to the immediate gravity of the crime and its consequences. Arson, in all its forms, is an extremely serious and dangerous crime, and the element of general deterrence must be given proper weight, in order to reflect the Court’s condemnation of the crime, especially where it is committed with an appreciation of what is being done and there is a calculated act of vengeance. We entirely agree with her Honour’s remarks that “it is important that people who are likely to seek revenge by setting another’s property alight should know that, if they do so, they are likely to be visited by condign punishment”.[42]
Those considerations, which are also reflected in s 10(3) of the Criminal Law (Sentencing) Act 1998 (SA), are pertinent in the present case. They meant that a sentence of imprisonment was inevitable.
[41] (1981) 27 SASR 348
[42] Ibid at 351.
Counsel emphasised the appellant’s youth, limited intelligence and psychiatric state.
As already noted, the appellant was only 19 years and 10 months old at the time of the offence. Her youth was undoubtedly a mitigating factor. This court has spoken on many occasions of the seriousness with which sentencing a young offender to prison for the first time should be regarded. Courts usually give greater emphasis to rehabilitation rather than deterrence when sentencing a youthful offender.[43]
[43] R v McGaffin [2010] SASCFC 22 at [69].
The sentencing Judge did not refer specifically to the appellant’s age but it is apparent that he did not overlook her youthfulness. He referred to a number of difficulties in her upbringing and to her two-year old son who was born when the appellant was 18 years old.
Dr White had carried out two psychological assessments of the appellant: one on 2 November 2010 and the second on 12 June 2012. Following the November 2010 assessment, Dr White considered that the appellant was in the “mental retardation” range of intelligence (IQ of less than 70) and around the first percentile of the age equivalent population. He also considered that her problem solving skills were equivalent to those of the average 7½ year old child. Following his tests in June 2012, Dr White revised his opinion. He considered that the appellant’s IQ was in the “borderline” range and that her problem solving abilities had “significantly improved”.
It is well established that intellectual impairment may be a factor relevant to sentencing. In Muldrock v The Queen[44] the High Court noted the reduced scope for general deterrence and retribution in sentencing offenders who suffer from mental retardation. The Court then continued:
The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[45]
(Citations omitted)
[44] [2011] HCA 39; (2011) 244 CLR 120.
[45] Ibid at [54]; 139.
A number of the authorities were reviewed recently by Duggan J in R v Clifford.[46] Duggan J referred to R v Wiskich[47] in which Martin J concluded his analysis with the following:
In sentencing persons suffering from mental disorders it is important to bear in mind the general observations of Gleeson CJ in Engert to which I have already referred. The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.[48]
[46] [2010] SASCFC 10.
[47] [2000] SASC 64; (2000) 207 LSJS 431.
[48] Ibid at [62]; 457-8.
This means that regard must always be had to the circumstances of the particular case. The mere fact that an offender has some intellectual impairment will not of itself always be mitigatory.
Counsel’s submissions before the Judge and on the appeal did not indicate any close relationship between the appellant’s low intelligence, on the one hand, and her commission of the offence, on the other. One might understand in a general way that the appellant’s impaired ability to reason and to cope with conflict, and her manner of concrete thinking may have contributed to her commission of the offence. In this respect, Dr White’s reference to the appellant having a “primitive response to perceived threats and emotional outbursts” is pertinent. However, there is no suggestion that the appellant did not know that what she was doing was wrong. The evidence about the manner in which the fire was started indicates some premeditation and planning on her part, and her attempts to avoid detection indicate a consciousness on her part of the wrongfulness of her conduct. It seems that the appellant’s conduct was prompted by her disgruntlement with SAHT. These matters indicate that both personal and general deterrence were proper elements in the Judge’s sentence.
Fresh evidence
Counsel placed much emphasis on the appellant’s psychiatric state. He asked the court to receive as fresh evidence a report from the psychiatrist, Dr Begg, who had examined the appellant at the Women’s Prison on 16 November 2012. Dr Begg considers that the appellant suffers from a schizophrenic disorder which impairs her ability to manage in society and now impairs her ability to manage in custody.
The limited circumstances in which, under s 359(a) of the Criminal Law Consolidation Act 1935 (SA), this Court receives fresh evidence on appeal are well known. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use before the sentencing Judge. Secondly, the evidence must be such that if given at first instance, it would probably have had an important influence on the result of the case, although it need not be decisive. Thirdly, it must be apparently credible.[49] In the case of sentence appeals these principles can be applied with some flexibility[50] and appellate courts will receive the fresh evidence if it can clearly be shown that the failure to receive the evidence may have the effect that an unjust sentence will be permitted to stand.[51]
[49] R v Dorning (1981) 27 SASR 481.
[50] R v Araya (1992) 63 A Crim R 123 at 129 (Gleeson CJ).
[51] R v McIntee (1985) 38 SASR 432 at 435.

In R v Smith[52] King CJ explained the proper purpose of fresh evidence on an appeal against sentence as being –
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.[53]
[52] (1987) 44 SASR 587.
[53] Ibid at 588.
In my opinion, neither the first nor the second of the conditions for the reception of fresh evidence is satisfied in the present case.
In his report of 3 November 2010, Dr White referred to a report dated 15 September 2010 from the appellant’s general practitioner which indicated, amongst other things, that the appellant suffered from schizophrenia and bipolar disorder, and to the appellant receiving treatment from a psychiatrist, Dr Maghazaji. Dr White also considered that the appellant was likely to satisfy the DSM-IV diagnostic criteria for a number of psychiatric conditions, including schizophrenic disorder. He thought it likely that the appellant would require a combination of mental health skills to manage her condition.
By the time of Dr White’s second assessment of the appellant, she had stopped seeing Dr Maghazaji, apparently because of her perception about the effect of some of her treatment. Dr White still considered that the appellant suffered from a significant mental illness. He “strongly recommended” a further psychiatric review of the appellant.
However, the sentencing Judge was not provided with any further psychiatric assessment for use in relation to the sentencing. This court was not provided with any explanation for such an examination not having taken place. Nor was it provided with an explanation for a report from Dr Maghazaji not having been obtained. So far as the information before the Court indicates, it may have been the result of a deliberate forensic decision, although it is difficult to identify any sound basis for such a decision.
In my opinion, the kind of psychiatric evidence which the appellant now seeks to adduce must have been available to her at the time of the sentencing submissions.
Legal practitioners accepting instructions to make submissions in mitigation of penalty have a responsibility to place before the sentencing court all the material which is relevant to the sentencing. The discharge of this responsibility will usually require the practitioners to proof the defendant appropriately and, when psychiatric or psychological examination is indicated, to ensure that the appropriate assessments are carried out. It also includes the responsibility of gathering together and tendering other supportive material, including character references.
If relevant material could have been obtained and tendered at the time of sentencing with an exercise of ordinary diligence, it will not usually be received as fresh evidence on the appeal. This is an application of well-established principle. Amongst other things, proper adherence to this principle avoids the fragmentation in the sentencing process which occurs if some aspects are dealt with by a sentencing Judge and others by an appellate court. It is also consistent with the proper limits of the appellate function. Latham CJ spoke of this consideration in Green v The King[54] in relation to an appeal against conviction:
These rules [as to the reception of fresh evidence] … are based upon important principles of public policy. There is grave risk of impeding the administration of justice if new trials are readily granted upon the ground of discovery of fresh evidence. If persons who become subject to the processes of the law were allowed to try again because they had chosen not to use evidence which was available or which with reasonable diligence could have been discovered by them, legal proceedings would tend to become interminable and grave injustice would, in practice, result in many cases.[55]
[54] (1939) 61 CLR 167.
[55] Ibid at 175-6.
Counsel placed much weight on Dr Begg’s opinion as to a proper treatment plan for the appellant’s schizophrenic disorder. Dr Begg said:
A comprehensive treatment plan includes the provision of medication, which she can receive inside or outside the prison, psychological intervention and social work intervention to establish and maintain social networks. The provision of stable accommodation, activities during the day and assistance in learning the necessary skills to negotiate life in society requires case management by the Mental Health Service. This is not available in the prison environment.
In summary therefore, in addition to the low intellect, I believe Ms Hallett does suffer from a Schizophrenic Disorder, and whilst the psychotic aspects of that disorder are reasonably well controlled on her current medication regime, there is not attention to the psychological or sociological factors that are an important determinant of long term outcome in such disorders.
It is evident, however, that the appellant’s psychiatric conditions are being treated by appropriate medications while she is in custody. There is no reason to suppose that that will not continue. Dr Begg’s report indicates that the appellant also needs forms of psychological and sociological support, which are not available in the prison environment. In part, that is an inevitable consequence of incarceration.
In my opinion, Dr Begg’s report does cast additional light on the appropriate diagnosis and on the appellant’s treatment needs. However, I doubt that it would have had an important influence on the appellant’s sentence. That is because the Judge did have the two reports from Dr White and did in any event fix an unusually low non-parole period of 18 months. Although he did not state explicitly his reasons for doing so, it is implicit that the Judge was concerned about the appellant’s youth, low intelligence and mental condition. In my opinion, it cannot reasonably be concluded that, had the Judge had Dr Begg’s assessment, he would have fixed a lower non-parole period. Even if Dr Begg’s report is received, it does not, in my opinion, indicate that the non-parole period fixed by the Judge is so unreasonable as to warrant this court’s interference.
For these reasons, I would not receive the fresh evidence which the appellant sought to adduce on the appeal.
Consideration
There are cases in which the ill health of a defendant is relevant to the fixing of a proper sentence. King CJ in R v Smith[56] stated the relevant principle as follows:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.[57]
[56] (1987) 44 SASR 587.
[57] Ibid at 589.
Given that the appellant is receiving an appropriate medication regime, it cannot be said that imprisonment will be a greater burden on her by reason of her mental condition. Neither the reports of Dr White (nor that of Dr Begg) indicate that there is serious risk of imprisonment having a gravely adverse effect on the appellant’s health.
As I indicated at the commencement of these reasons, there is much in the appellant’s circumstances which attracts sympathy. Nevertheless, the appellant committed a very serious offence causing substantial damage, well knowing the wrongfulness of her conduct. She did so out of a sense of disgruntlement with the SAHT. Even now, the appellant has not expressed any contrition for her conduct.
In my opinion, the imposition of a sentence of imprisonment to be served immediately was appropriate in this case and the Judge took account of the favourable mitigating factors by fixing an unusually low non-parole period. As such, it cannot be said that the non-parole period fixed by the Judge was so excessive as to constitute an error, nor that the Judge erred in failing to order suspension of the sentence. For this reason the appeal should be dismissed.
Psychiatric evaluations at the Women’s Prison
The report of Dr Begg indicates that he experienced some difficulties in obtaining access to the appellant at the Women’s Prison on 16 November 2012 for the purposes of his assessment. An affidavit from the appellant’s solicitor also indicates that three psychiatrists declined to accept instruction to attend at the Women’s Prison to assess the appellant because of “issues” with the Department for Correctional Services.
This Court is in no position to pass judgment on the matters raised by Dr Begg or about the concerns of the three psychiatrists who were approached by the appellant’s solicitor. It is, however, appropriate to emphasise that the courts frequently rely for the proper discharge of their functions on psychiatric evaluations of persons in custody. Those evaluations can be carried out only if access to prisoners by the psychiatrists retained for these persons is facilitated by the Department for Correctional Services.
The circumstances disclosed in the affidavit of the appellant’s solicitor, sworn 19 November 2012, and in Dr Begg’s report of 16 November 2012 are such that it is appropriate for both documents to be referred to the Chief Executive of the Department for Correctional Services. I recommend that such referral occur.
Conclusion
For the reasons given earlier, I consider that this appeal should be dismissed.

(1)A person who, without lawful excuse, by fire or explosives, damages property that is a building or motor vehicle (whether the property belongs to the person or to another)—

(a) intending to damage property; or
(b) being recklessly indifferent as to whether his or her conduct damages property,
is guilty of arson.