R v Holland
[2002] VSCA 118
•12 August 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 124 of 2002
| THE QUEEN |
| v. |
| KENDALL ANNE HOLLAND |
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JUDGES: | BATT and EAMES, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 August 2002 | |
DATE OF JUDGMENT: | 12 August 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 118 | |
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Criminal law - Sentencing - Cultivation of a narcotic plant in not less than a commercial quantity and trafficking in a drug of dependence - Whether a sentence of nine months imprisonment was manifestly excessive - Hardship to a young child and the grandparent carers of the child - Whether further evidence disclosed exceptional circumstances for the purposes of the hardship principle stated in Stewart (1994) 72 A.Crim.R. 17 and Wirth (1976) 14 S.A.S.R. 291.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Gibson | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr D. Grace, Q.C. | Anthony Isaacs |
BATT, J.A.:
I have found this a worrying case, but, having had the benefit of reading the reasons for judgment of O’Bryan, A.J.A., I agree with his Honour’s conclusion that the appeal must be dismissed and, subject to what follows, with his reasons for that conclusion.
In my opinion, the affidavit sworn by the appellant’s father-in-law and his oral evidence in amplification thereof are admissible on this appeal to show the true significance of facts in existence at the time of sentencing and adverted to before the sentencing judge: R. v. Eliasen[1]; R. v. Babic[2]; R. v. Rostom[3].
[1](1991) 53 A.Crim.R. 391 at 394.
[2][1998] 2 V.R. 79 at 81-82.
[3][1996] 2 V.R. 97 at 99.
But, after anxious consideration, I have concluded that the requisite exceptional hardship to the appellant’s child Selby is not shown. The criterion of exceptional hardship is extraordinarily difficult to satisfy, as reference to the oft-cited judgment of Wells, J. in The Queen v. Wirth[4] shows. Before the second passage cited by O’Bryan, A.J.A. from his Honour’s judgment, Wells, J.[5] had drawn attention to the truism that hardship to spouse, family, and friends[6], is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court and had stated that courts would often do less than their duty if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners. But, his Honour had gone on to say, the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where “a sense of mercy or of affronted commonsense imperatively demands that they should draw back”. This last passage was cited with approval by, amongst others,
Burt, C.J. in the Western Australian Court of Criminal Appeal in R. v. Boyle[7]. I recognise the very considerable burdens that Selby’s paternal grandparents are enduring in order to care for her and my sympathy is engaged. But, in the end, I do not discern in this case the “imperative demand” of which Wells, J. spoke. In the circumstances of this case, the incarceration of both parents of one healthy child of seven is not sufficient to constitute exceptional circumstances.[8]
[4](1976) 14 S.A.S.R. 291.
[5]At 296.
[6]The categories of persons affected were amplified by Gleeson, C.J. in R. v. Edwards (1996) 90 A.Crim.R. 510 at 515, a passage cited by Eames, J.A.
[7](1987) 34 A.Crim.R. 202 at 206.
[8]Though it is a question of fact in the circumstances of each case, I note that the incarceration of the sole parent of three children was insufficient in R. v. Yates (1997) 99 A.Crim.R. 483 at 486-488.
With regard to the other grounds of appeal, I say only this. Measured against the objective seriousness of the appellant’s offending and the maximum penalties available the sentence of nine months’ imprisonment is, I agree with O’Bryan, A.J.A., very lenient.
EAMES, J.A.:
I have had the advantage of reading the reasons of O’Bryan, A.J.A. and for the reasons he has given I agree that the Court should receive into evidence the affidavit evidence of Mr Robert Holland. I also agree with his Honour’s conclusion that this appeal should be dismissed, and his reasons therefor.
A sentence of imprisonment is the most severe punishment which may be imposed under our system of criminal justice. The impact of imprisonment upon the offender in every instance is severe, and in most instances must diminish the prospect of rehabilitation of the offender. There are good reasons both of humanity and public policy why imprisonment has been enshrined in s.5(4) of the Sentencing Act 1991 as a punishment of last resort. But, inevitably, the impact of a sentence of imprisonment is not just on the offender. As Gleeson, C.J. (as he then was) observed in Edwards[9]:
“There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.
Whilst so called floodgates arguments are often, and rightly, met with judicial scepticism, the practical consequences of an argument that a sentencing judge or magistrate should deal leniently with an offender because of the effect which punishment of the offender will have upon some third party are such that the courts have approached this subject with caution.”
[9](1996) 90 A.Crim.R. 510, at 515.
Where an offender avoids imprisonment on account of the impact of imprisonment on family members and notwithstanding the fact that all other sentencing considerations would compel a sentence of imprisonment, offenders not so favoured might feel a legitimate sense of grievance. What Gleeson, C.J. in Edwards[10] called the “even-handed administration of criminal justice” is an important consideration which sentencing judges and magistrates should endeavour to reflect.
[10]Supra, at 518.
There is always a place for mercy in the sentencing process,[11] but as Callaway, J.A. noted in Carmody[12] a sentencing judge or magistrate would be failing in his or her duty if proper sentencing considerations were overwhelmed by an emotional response to the hardship which a sentence would impose upon the family of the offender.
[11]Miceli [1998] 4 V.R. 588.
[12](1998) 100 A.Crim.R. 41, at 46.
As the cases cited by O’Bryan, A.J.A. show, there remains, always, the overriding right of the courts to grant such leniency where to do otherwise would
offend the sense of mercy of the sentencing judge or magistrate. The circumstances in which such an outcome would occur where the appeal for mercy relates to the impact of a sentence on family or others must, however, be “highly exceptional”,[13] or “clearly exceptional”.[14]
[13]R. v. Wirth (1976) 14 S.A.S.R. 291, at 296.
[14]Carmody (1998) 100 A.Crim.R. 41, at 46.
I feel great sympathy for the appellant’s daughter and for the appellant’s mother and her in-laws. The burden which has been imposed on them by the appellant’s offending has been profound. In my view, however, to the extent that it was appropriate for him to have done so, the sentencing judge must have taken into account the likely hardship on the appellant’s daughter and, in consequence, the impact of that hardship on the appellant, when he imposed what was a very lenient sentence.
I am not persuaded that the hardship on the appellant’s daughter, or on others, is such as to bring this case within the special category of cases where, as a merciful response, an otherwise appropriate sentence of imprisonment should not run its course.
O'BRYAN, A.J.A.:
The appellant, now aged 29 years, was presented in the County Court together with her husband, Stephen Holland, on 25 February 2002 and pleaded guilty to one count of cultivation of a narcotic plant in not less than a commercial quantity and one count of trafficking in a drug of dependence. The narcotic plant and the drug of dependence was Cannabis L. Her husband also pleaded guilty. The offences took place between 1 June and 20 December 2000.
Following a plea, the appellant was sentenced on 14 May 2002 on count 1 - cultivation of cannabis - to be imprisoned for a term of nine months. The maximum sentence was 25 years' imprisonment and/or a monetary penalty of $250,000. On
count 2 - trafficking - she was sentenced to be imprisoned for a term of three months. The maximum sentence was 15 years and/or a monetary penalty of $100,000. The total effective sentence was nine months. A declaration was made that the period of one day be reckoned as a period of imprisonment already served under the sentence.
The appellant gave notice of application for leave to appeal against sentence on 4 grounds.
On 26 July 2002, the President granted the applicant leave to appeal against the sentences imposed upon her when her counsel foreshadowed an additional ground that hardship to the applicant's daughter, Selby, then aged seven-and-a-half years, which was touched upon during the course of the plea, had come about. An affidavit made on 25 July 2002 by Robert Holland, the applicant's father-in-law, deposed that neither he nor his wife, who had been caring for Selby since 14 May, could continue to do so.
The President, being of the opinion that the foreshadowed additional ground was reasonably arguable, granted the application for leave to appeal.
On 1 August 2000 the Registrar granted leave to the appellant to add a fifth ground of appeal as follows:
"By reason of the manifest hardship to the child of the appellant which has occurred post-sentence (evidenced by affidavit material) the Court should interfere with the sentences imposed upon the appellant."
The appellant and her husband were directors of a private company between 1997 and 2000. The company leased factory premises at 69 Dover Street, Richmond and business premises at 1335 Burke Road, East Kew. In February 2000 the company purchased residential premises at 28 Relowe Crescent, Mont Albert, as an investment, the deposit for which was borrowed from the appellant's father-in-law.
In June 2000 the appellant and her husband set up a hydroponic system for the purpose of cultivating cannabis using three separate premises, 69 Dover Street, Richmond, 28 Relowe Crescent, Mont Albert and 2 Birdwood Street, Balwyn. The Birdwood Street address was rented as residential premises. At each address the appellant and her husband cultivated a cannabis crop. Three crops were harvested in September 2000, but the harvest returns were poor. Shortly after the first harvest they planted and cultivated three more crops.
On 20 December 2000 police executed four search warrants. At 2 Birdwood Street, Balwyn, police found a hydroponics system in the garage of the premises and 53 cannabis plants growing in plastic tubs underneath an elaborate lighting and air conditioning system. Other paraphernalia used in the cultivation of cannabis was located in the garage and house. A car in the driveway also contained equipment used in connection with growing cannabis.
At 1335 Burke Road, Kew East police seized documents in the premises and a quantity of hydroponic equipment in the garage.
At 28 Relowe Crescent, Mont Albert, comprising vacant residential premises, police located a hydroponic system in various rooms of the house being used to grow cannabis plants. A total of 65 cannabis plants were located, all heavily flowered female plants and ranging from 60 centimetres in height to 1.6 metres, the majority being over 1 metre. Other paraphernalia, including an intricate irrigation watering system, suitable for growing cannabis was found in the house.
At 69 Dover Street, Richmond, police located a hydroponic system operating within two rooms of the factory being used to grow 45 cannabis plants. The plants ranged in height from 60 centimetres to 1.2 metres. Other items of equipment used in connection with the cultivation of cannabis were located in the factory. The premises had a security system installed. This represents an extensive production of a prohibited substance.
In all a total of 163 cannabis plants were seized from three of the premises searched. A commercial quantity of cannabis is 100 plants.
Following her arrest, the appellant was interviewed by police on 20 December 2000. She admitted growing cannabis with her husband since June 2000. She stated that she smoked cannabis and was aware that her husband was selling it to assist them with their debts. She admitted that she had assisted her husband cultivate and harvest three crops, one at each premises, prior to planting the crops seized by the police. The appellant stated that she and her husband used cannabis daily and the cultivation was primarily to provide for their personal needs. The husband described himself as a chronic cannabis addict.
The personal circumstances of the appellant were disclosed during the plea. The appellant was born in New Zealand in 1972 and was brought to Australia by her mother when she was five years of age, her parents having separated. Her mother has remarried and lives in Canberra. The appellant has a brother who lives in Auckland and a step-brother who lives in Canberra. After leaving school, the appellant began tertiary education in Canberra and completed three years part-time of a B.Sc. degree before losing interest in the course. When she was a student the appellant met her husband and a daughter was born of the relationship in January 1995. At that time the appellant and her husband were living in Birdwood Street, Balwyn. She married in 2000.
During the plea, Robert Douglas Holland, the father-in-law of the appellant was called as a witness by counsel for the appellant's husband. He informed the judge that his wife was providing care for their granddaughter, Selby. He detailed the financial difficulties experienced by his son, primarily caused when a business being conducted in Indonesia by his son and the appellant ceased, following the East Timor problem for which Australia was blamed. Mr Holland also informed the judge that the appellant was a good mother to his granddaughter and a very intelligent person. He agreed with counsel for the appellant that his wife would only be able to provide child care for Selby "on a very short-term basis". Mr Holland acknowledged that his wife had a severe problem with short-term memory loss and looked after Selby after school in the afternoon.
Counsel for the appellant relied upon her plea of guilty, her frankness with the police during the record of interview and her genuine remorse as mitigating factors. Counsel asked the judge to take into account the impact on the child were both parents given custodial sentences. He reminded the judge that the grandparents would be unable to assist in providing care for Selby long-term.
His Honour noted in his sentencing remarks, that the appellant had a young child but otherwise did not comment upon the hardship which would be caused to the child and the paternal grandparents if both parents were given custodial sentences. The judge considered that the appellant's criminality was of a lesser nature than that of her husband and reflected that in the sentences he imposed on the appellant and her husband. The total effective sentence imposed on the appellant was nine months' imprisonment and on the husband was two years and three months' with a non-parole period of fifteen months. The husband has abandoned his application for leave to appeal.
Grounds 1, 2 and 4 of the grounds of appeal allege that the sentence was manifestly excessive (ground 1), that the judge gave insufficient weight to a number of mitigatory factors (ground 2) and that the judge erred in not imposing a wholly suspended sentence (ground 4).
It is convenient to defer consideration of these grounds and to proceed first to grounds 3 and 5, the latter being the additional ground set out in paragraph [6]. Ground 3 has been subsumed by ground 5, in my opinion. Ground 3 asserts that the judge erred in that he failed to find as an exceptional circumstance the hardship caused to the child were both the applicant and her husband to be gaoled. This point was not strongly argued by counsel in the sentencing court. Reference was made to the sentencing principle that the impact of a sentence on third parties is generally not a matter that courts are to take into account, but the circumstances may be regarded as exceptional if the imprisonment of both parents leaves a child or children without parental care.[15] Counsel said to the judge:
"There are grandparents who you heard yesterday are not able to assist long term. I don't put this as a major point. I simply say in case either my learned friend (the prosecutor) or your Honour says well hardship to others really ought not be taken into account. In an instance where there's a possibility of both parents being incarcerated it then does come to the fore more importantly, and I don't put it any more highly than that."
[15]Fox and Freiberg - Sentencing, 2nd edition, 3.904 was cited.
In these circumstances, I am not prepared to say that the judge had to find as an exceptional circumstance hardship would be caused to the child were he to impose custodial sentences on both parents and that, as a consequence, a custodial sentence was inappropriate for the appellant. No exceptional circumstances of hardship existed when the sentence was imposed. Quite clearly, the judge imposed a very lenient sentence on the appellant having regard to the serious nature of the offending and her role in the cultivation.
Turning now to ground 5, it is first necessary to consider whether the affidavit to which I earlier referred is admissible on this appeal. By s.574 of the Crimes Act 1958, this Court has a discretionary power to receive further evidence on an application for leave to appeal against sentence.
Reference needs to be made to R. v. Babic[16], a decision of the Court of Appeal, and in particular to the leading judgment of Brooking, J.A.[17]It is debatable whether the affidavit concerns evidence of events occurring prior to the sentence or concerns evidence of events after sentence, or both. As to the latter, Brooking, J.A. observed:
"Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible. The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court."
[16]R. v. Babic [1998] 2 V.R. 79.
[17]R. v. Babic at 80-82.
In R. v. Eliasen[18], an earlier decision of the Court of Criminal Appeal, Crockett, J., speaking for the Court endorsed the view taken by the Court of Criminal Appeal of South Australia in R. v. Smith[19] that when a sentence is attacked as excessive, as it is in the present case in grounds 1, 2 and 4, it is permissible to have regard to events occurring after sentencing for the purpose of showing the true significance of the facts which were in existence at the time of sentence.
[18]R. v. Eliasen (1991) 53 A.Crim.R. 391.
[19]R. v. Smith (1987) 44 S.A.S.R. 587.
In the present case the problem of caring for Selby in the long-term was raised before the judge, perhaps not as convincingly as it could have been but, in any event, the evidence emerged in an unsatisfactory way, mainly as a result of a leading question put to the appellant's father-in-law (called by Stephen Holland's counsel) by the appellant's counsel:
"Q.All right. You have mentioned a couple of times that your wife is assisting with child care. That could only be on a very short-term basis, though, couldn't it, you as grandparents are not able to take full-time care of that child?
A.No. No."
What was meant by "a very short-term basis" and "assisting with child care" was not pursued. The affidavit is more concerned with events after sentence than with events before sentence, in my opinion, and is not concerned to show that imprisonment will be a greater burden on the offender by reason of the inability of the grandparents to continue providing care for Selby. Rather its principal purpose was to introduce new evidence in relation to the welfare of the applicant's child. In that regard, the decision of this Court in R. v. Carmody[20] is very relevant. Carmody had been sentenced to serve a term of imprisonment for importing a trafficable quantity of heroin under the Customs Act 1901 (Cth) and with trafficking in heroin under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). She sought to appeal against the sentence on a number of grounds. Her husband had also been sentenced to serve a term of imprisonment for the same offences. One of her grounds was that there was new material relating to the welfare of the applicant's child relevant to the question of sentence. The sentencing judge had material placed before him of a chronic medical condition suffered by the child and that it was likely the child would be very appreciably disadvantaged by a separation from his mother.
[20]R. v. Carmody (1998) 100 A.Crim.R. 41.
An affidavit was tendered to the Court of Appeal in Carmody purporting to show that the child did react adversely to his deprivation of his mother's care following her incarceration. Tadgell, J.A., who delivered the leading judgment of the Court, considered that the affidavit was strictly inadmissible because it was based on hearsay of the circumstances of the child. However, whether it was formally admitted into evidence or not is not clear. The Court was certainly influenced by its contents for, error having been found in another respect, the applicant's sentence was shortened on the sole ground that some mercy was warranted to the child.
Tadgell, J.A. referred to a provision in the Crimes Act 1914 (Cth), s.16A(2)(p) which requires that, in determining a sentence to be passed on a person for a federal offence, the court must take into account the probable effect that a sentence would have on any of the person's family or dependents. There is no equivalent provision in the Sentencing Act 1991 (Vic). His Honour said:
"The courts have taken the view that that provision is to be interpreted as making hardship to a prisoner's family resulting from imprisonment relevant only if exceptional circumstances are shown: see, for example, Matthews (unreported, Court of Appeal, Vic, 20 March 1996.) It is the same at common law, which in this respect governs the imposition of a sentence for the State offence of trafficking."[21]
[21]R. v. Carmody (supra) at 45.
The Court did not consider that exceptional circumstances had been shown because the material relied on was less than satisfactory. Nevertheless, the Court considered it could show some mercy to the child because it knew of the actual impact that the applicant's incarceration had had on her child.
The principles upon which mercy may properly be extended and the reasons for doing so are explained in Miceli[22], particularly in the judgment of Tadgell, J.A., but not in the same context in which the concept of mercy was raised here.[23] Mercy is raised here primarily on account of the appellant's child. In Miceli, mercy was raised by reference to hardship already suffered by the offender.
[22]R. v. Miceli [1998] 4 V.R. 588.
[23]Supra at 592.
In the present circumstances, at the outset I entertained doubt whether the affidavit is admissible having regard to the decisions of Babic and Eliasen.[24] The affidavit contains hearsay. However, the material in the affidavit was provided from a respectable person. It reveals that Selby has suffered what is described in lay terms as a "grief reaction". At home, she is quiet, withdrawn and non-communicative. At school, she is said to be vague and detached and not performing as well as previously. This was not verified by her schoolteacher or a doctor. The deponent said that he is not in a position to continue to care for and manage his granddaughter whilst her parents remain in gaol and that his wife is unable alone to care for Selby due to her suffering from post-menopausal short-term memory loss, for which there is no medical evidence before the Court. The deponent asserts that there is no other family in Melbourne who can help.
[24]Babic (supra); Eliasen (supra).
Mr Grace for the appellant was granted leave to call the deponent, Robert Holland, and adduced further evidence. Mr Holland is an Anglican priest whose work is in the retail shops area of the Brotherhood of St Laurence. His work takes him out of Melbourne regularly. He said that his current address is about two kilometres from a private school attended by Selby and that his wife drives Selby to and from school each day. Due to his wife's short-term memory problem he has to ring her each afternoon to remind her to collect Selby from the school. His wife is able to drive a motor car but has difficulty if she is required to drive on an unfamiliar route.
Mr Holland said that his financial circumstances were such that he could not afford a child carer after school hours or in the house. He explained that Selby's "grief reaction" has not been treated professionally but he and his wife counsel Selby after returning from a gaol visit. The appellant is presently in Tarrangower Prison in the country and a visit requires a day trip. Mr Holland said that Selby has now placed a "Visitors' List" outside her bedroom door and this indicates her deep concern for her mother's incarceration.
Under cross-examination, Mr Holland said that Selby is in a caring, supportive school, his wife does the shopping and he did not consider volunteer care was desirable because it would upset Selby's lifestyle. He said that he had returned to the duties of his ministry full time and was able to provide a few hours each week assisting in a business conducted by his son up to the time of his incarceration. He did the latter in order to generate income to pay the rent on the appellant's matrimonial home at 2 Birdwood Street, Balwyn (into which he and his wife had moved for Selby's sake) and to pay living expenses for Selby.
I accept the honesty and sincerity of Mr Holland and I have no doubt that he and his wife care for Selby under difficult circumstances. However, they have managed to do so now for about three months, receiving help from Selby's maternal grandmother from time to time. I recognize their hardship, but I believe that they will be able to continue to care for Selby for the next six months. It is most understandable that Selby misses her mother greatly and is disturbed by prison visits. This is to be expected, particularly where a child is young and impressionable. Fortunately, her health is good and medical treatment has not been required for her grief symptoms.
I am persuaded that the affidavit should be received in evidence now it has been supported and explained by oral evidence.
The purported grief reaction suffered by the child since the parents' incarceration was not before the sentencing judge and could not reasonably have been foreseen by him. I can find no sentencing error of the kind alleged in ground 3.
I now turn to consider the "exceptional circumstances" submission of Mr Grace. Mr Gibson submitted that if the affidavit material is admitted the "fresh" evidence does not come into the category of "exceptional circumstances" as explained in the authorities. The issue of hardship was canvassed during the plea, he said, and now the issue has been elaborated further.
Stewart[25], in the Court of Criminal Appeal Western Australia, was concerned with hardship caused to three children of an offender when she was sentenced to be imprisoned for 22 months following her plea of guilty to drug offences. Franklyn, J., in whose reasons Owen, J. agreed, stated the principal of hardship thus:
"Generally, hardship caused to an offender's children is not a circumstance to be taken into account. The authorities are clear, however, that it may be taken into account when the degree of hardship that imprisonment will involve is exceptional or when the offender is the mother of young children, or where the imprisonment will result in the children being deprived of parental care. In all cases, however, it depends upon the gravity of the offence and the circumstances of the case."[26]
[25] R. v. Stewart (1994) 72 A.Crim.R. 17.
[26]Supra at 21.
In Victoria, in the Corrections Act 1986, s.31 permits the Secretary of the Corrections Department to permit a prisoner's child to live with the prisoner if the Secretary is satisfied that it is in the best interests of the child to do so.
The court was informed that at Tarrengower Prison currently there are five female prisoners who have a child or children living with them whilst they serve their sentence of imprisonment. Usually the child must be of pre-school age, which would probably preclude Selby living with her mother. In any event, Mr Holland did not consider such an option would be in the best interests of Selby.
The judgment of Wells, J. in Wirth[27] is frequently cited on the subject of hardship. The question his Honour posed and answered is relevant to the present case:
[27]R. v. Wirth (1976) 14 S.A.S.R. 291 at 295-296.
"When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the court in mitigation of that sentence?"
His Honour answered the question thus:
"In my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so."
That judgment has been cited with approval in a number of cases.[28]
[28]R. v. Boyle (1987) 34 A.Crim.R. 202; R. v. T (1990) 47 A.Crim.R. 29; R. v. Adami (1989) 51 S.A.S.R. 229.
Edwards[29] is another case to which reference needs to be made. It is a decision of the Court of Criminal Appeal, New South Wales. Gleeson, C.J. (as he then was) applied the principle stated in Boyle. His Honour commented upon the difficulty in identifying a ground upon which a case can properly and relevantly be regarded as exceptional and said:
"Justice will not be seen to be administered even-handedly if exceptions are made in cases which are not truly exceptional."
His Honour considered that "the objective seriousness of the crime for which the respondent was being sentenced" was a relevant consideration. The facts in Edwards are far removed from those in the present case.
[29]R. v. Edwards (1996) 90 A.Crim.R. 510.
Finally, reference should be made to Yates[30], a decision of the Court of Appeal. The applicant, who pleaded guilty to one count of armed robbery and one count of recklessly causing serious injury, upon his appeal relied upon the hardship which a sentence of imprisonment would have upon the members of his family, he being a sole parent with three children. The court considered and applied the principle stated in Wirth and Boyle that a sentencing court should have no regard to the impact which a sentence of imprisonment will have upon the members of a prisoner's family unless there are exceptional circumstances. Charles, J.A, who delivered the leading judgment cited with approval words uttered by Hunt, C.J. at C.L. (N.S.W.) in Maslen[31]:
"It is only in circumstances where the hardship upon a prisoner's family is exceptional that it will operate in mitigation; the hardship must be sufficiently extreme - going beyond the sort of hardship which inevitably results to a family when the breadwinner is incarcerated - that a 'sense of mercy or of affronted common sense imperatively demands that [the sentencing judge should pull back].'"
[30]R. v. Yates (1997) 99 A.Crim.R. 483.
[31]R. v. Maslen and Shaw (1995) 79 A.Crim.R. 199 at 209.
Quite clearly, the sentencing judge was made aware during the plea of the hardship which would be caused to the appellant's mother-in-law and father-in-law by her incarceration. He was made aware of the difficulties they would be likely to experience in providing care for Selby, but it was never put to him that exceptional circumstances presently existed. It cannot be gainsaid that the circumstances of Selby and her grandparents were taken into account in the sentence for the appellant received a lenient sentence for serious offending.
The circumstances revealed in the 'fresh' evidence (if it may be so-called) do not meet the criteria established by the authorities I have reviewed, in my opinion. As I earlier indicated, it was reasonably foreseeable when the sentence was imposed that Selby would be the innocent victim of her parents' offending and would be upset by knowing that her mother, in particular, was in gaol and separated from her. Fortunately, the hardship caused to Selby has not produced an illness, nor has it become an "exceptional circumstance" demanding the appellant's immediate release. The hardship caused to the grandparents has increased with the passage of time, every day being a burden to them, since the sentence was imposed on the applicant. They have continued to care for Selby under difficulty and, in my opinion, will probably continue to do so until the appellant is released. No exceptional circumstances calling for mercy have been shown in the 'fresh' evidence.
In my opinion grounds 3 and 5 fail.
I shall deal very briefly with the remaining grounds by saying that, in my opinion, all must fail. The sentence was not manifestly excessive and the judge was not bound to wholly suspend the sentence he considered appropriate at the time. These were serious offences of their type and required a custodial sentence. Grounds 1, 2 and 4 fail.
In my opinion, the appeal should be dismissed.
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