R v Hallett

Case [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

Continue reading R v Hallett

Sign in free to access the full text

Details
AGLC
R v Hallett [2012] SASCFC 143
Case
[2012] SASCFC 143
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, sitting as the Full Court, heard an appeal against sentence brought by the appellant, who had been found guilty by a jury of arson contrary to section 85(1) of the *Criminal Law Consolidation Act 1935* (SA). The appellant had been sentenced to a head sentence of four years and six months imprisonment with a non-parole period of 18 months. The appeal concerned whether the sentence was manifestly excessive and whether a psychiatric report should be received as further evidence.

The court was required to determine if the sentencing judge had erred in failing to give adequate weight to the appellant's personal circumstances, including her youth, cognitive impairments, and mental illness, and whether these factors warranted a reduction in sentence or the suspension of the imprisonment term. Additionally, the court considered the admissibility of a psychiatric report as further evidence on appeal.

The Full Court, comprising Gray J (with Kourakis CJ concurring), allowed the appeal. The court reasoned that the original sentence was manifestly excessive, finding that the sentencing judge had not adequately considered the appellant's youth (she was 19 at the time of the offence), her significant cognitive impairments, and her mental health issues. The court applied the principles established in *House v The King*, which require interference with a discretionary judgment if specific error is shown or if the result is unreasonable or plainly unjust. The court also noted the serious nature of arson and the need for general deterrence, but concluded that these factors were outweighed by the appellant's mitigating circumstances. The court resentenced the appellant to a head sentence of three years imprisonment with a non-parole period of one year, suspending the sentence upon her entry into a three-year good behaviour bond with conditions. Kourakis CJ specifically noted that the original judge's discretion to suspend the sentence had been affected by an error of law, as there was a proper basis to exercise that discretion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 sentenceDespite 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.

Decision

Reasons for decision

WHITE J
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. 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.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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].