R v Hosszu - [2009] SASC 362

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOSSZU
[2009] SASC 362
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice White)
27 November 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - TO ADMIT NEW EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence imposed by a District Court Judge – applicant pleaded guilty to one count of assault and one count of aggravated assault causing harm – applicant had consumed alcohol and Xanax prior to events giving rise to the offences – application to lead fresh evidence at the hearing of the application for permission to appeal – fresh evidence related to the effects on a person of the combination of Xanax and alcohol – Judge imposed a sentence of 10 months' imprisonment, six months to be suspended on condition that the applicant enter into a bond to be of good behaviour for six months – whether decision not to suspend the whole of the sentence was unreasonable.
HELD: evidence the subject of the application could have been put before the District Court Judge – evidence would not have a material bearing on the outcome of the application – tender of fresh evidence rejected – Judge considered all relevant factors in sentencing applicant – decision not to suspend the sentence in its entirety was open to the Judge – permission to appeal granted, but appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20(4), s 359(c); Criminal Law (Sentencing) Act 1935 (SA) s 18A, s 38(2a), referred to.
Markarian v The Queen (2005) 228 CLR 357; R v Dorning (1981) 27 SASR 481; R v Jongewaard [2009] SASC 346, applied.

R v HOSSZU
[2009] SASC 362
Court of Criminal Appeal: Doyle CJ, Nyland and White JJ

DOYLE CJ: Ms Hosszu pleaded guilty to one count of assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). As Ms Hosszu committed the offence while in the presence of another person, the offence was an aggravated offence, attracting a maximum penalty of imprisonment for four years. Ms Hosszu also pleaded guilty to one count of assault, an offence against s 20(3) of the CLCA. The maximum penalty for this offence is two years’ imprisonment.
Acting pursuant to s 18A of the Criminal Law (Sentencing) Act 1935 (SA) (“the Sentencing Act”), a District Court Judge imposed a single sentence of imprisonment for ten months. Exercising the power conferred by s 38(2a) of the Sentencing Act, the Judge directed that Ms Hosszu serve four months of the sentence, and suspended the remainder on condition that Ms Hosszu enter into a bond to be of good behaviour for a period of six months commencing from the date of her release.
Ms Hosszu seeks permission from the Court of Criminal Appeal to appeal against the sentence that the Judge imposed, permission having been refused by a single Judge of the Supreme Court. She complains that the District Court Judge erred in failing to suspend the sentence of imprisonment in its entirety.
Background
The incident which gave rise to the offences took place on the night of Australia Day 2008. Ms Hosszu, her brother Mr Hosszu and Ms Leopardi, a friend of Ms Hosszu’s, had met at Mr Hosszu’s house early that evening. There, Ms Hosszu consumed a significant amount of alcohol, some six or seven cans of a pre-mixed vodka drink. She also took four tablets described as Xanax which Ms Leopardi had given her. Ms Hosszu gave evidence at the time that she was sentenced to the effect that she understood Xanax to be an antidepressant medication which, when taken, makes one drowsy. According to the Judge, both Ms Hosszu and Ms Leopardi were intoxicated as a result of the combination of the alcohol and Xanax that they had consumed. Mr Hosszu was also intoxicated.
The evidence about when the alcohol and tablets were consumed is unclear. It was some time before the incident giving rise to the charges, which incident seems to have occurred about 10.00 pm.
The group left Mr Hosszu’s house to attend the fireworks display that was to take place at Christies Beach. Mr Hosszu was in a wheelchair. Ms Hosszu and Ms Leopardi were each pushing a child in a pram. The Judge said that all three were in an aggressive mood.
In a car park close to Christies Beach, a group of teenagers had gathered. Ms Wallace, aged 16 years, was a member of this group. They were playfully chasing each other and boisterously calling out to one another.
Ms Hosszu and her companions reached the car park. Ms Hosszu and her brother aggressively yelled at the group of teenagers, apparently in response to something one of the teenagers had said in jest to Ms Wallace. Some of the teenagers, including Ms Wallace, told Ms Hosszu and her brother that the group had not been talking to them. Ms Wallace moved behind some of her friends to get away from Ms Hosszu and her brother.
In submissions before the Judge, counsel for Ms Hosszu submitted that she and her brother had thought that a member of the group of teenagers had made a disrespectful comment about Mr Hosszu’s disability. It was submitted that their actions were borne out of genuine offence taken at something that a member of the group had said. The Judge rejected this submission. He said that even if Ms Hosszu was labouring under this mistaken belief, the group “quickly disabused” her of it. He found that Ms Hosszu, Mr Hosszu and Ms Leopardi were “spoiling for a confrontation”.
Ms Hosszu and her brother advanced at the group. Ms Hosszu pushed several members of the group, and yelled at them. She reached Mr Lozo-Plush, who was nervously laughing. He was 16 years of age at the time of the incident. She pushed Mr Lozo-Plush in the chest, and punched him in the head once or twice. Mr Lozo-Plush had a sore nose and a bad headache as a result of the contact with Ms Hosszu. It was this contact that gave rise to the charge of assault.
After Ms Hosszu had punched Mr Lozo-Plush, she approached Ms Wallace. She accused Ms Wallace of having started the confrontation. Ms Hosszu hit Ms Wallace on the side of her head with the palm of her hand. Ms Wallace repeatedly said that she was sorry. Ms Hosszu mockingly repeated what Ms Wallace had said. She hit Ms Wallace on the right side of her face, and then on the left side of her face. Ms Wallace fell to the ground. Ms Hosszu kicked Ms Wallace as she lay on the ground. Ms Wallace suffered bruises to her face and hip. The incident also caused her to suffer from headaches. It was as a result of this contact that Ms Hosszu was charged with offence of assault causing harm.
The offence was aggravated by reason of Ms Hosszu being in the company of Ms Leopardi at the time of its commission. Ms Leopardi was standing close to Ms Hosszu, and was encouraging Ms Hosszu while she was assaulting Ms Wallace. After Ms Hosszu had kicked Ms Wallace, Ms Leopardi stood over Ms Wallace and asked her if she was sorry. Ms Wallace said that she was sorry, at which point Ms Leopardi demanded that she empty her wallet. Ms Wallace said that she did not have a wallet, but gave Ms Leopardi $15 that she had in her pocket. Ms Leopardi patted Ms Wallace’s pockets, and removed a mobile phone that she found. The phone was later returned to a friend of Ms Wallace’s, who asked Ms Leopardi to give it back.
As the Judge said, Ms Wallace’s victim impact statement indicates that she has suffered “considerable anxiety” as a result of the incident.
Friends of Ms Wallace reported the matter to police. Ms Hosszu, her brother, and Ms Leopardi were all apprehended shortly after the incident. Ms Hosszu participated in a police interview in which she admitted that she had assaulted Ms Wallace.
The Judge accepted that Ms Hosszu was intoxicated due to the combination of Xanax and alcohol. By implication the Judge accepted that she was not prone to violence, and that the Xanax and alcohol contributed to her behaviour that evening.
After summarising the incident, the Judge turned to the personal circumstances of Ms Hosszu. She is 33 years of age. She has a four year old daughter. Although Ms Hosszu raises her daughter by herself, the Judge noted that there was no suggestion that her daughter would be left without a carer should Ms Hosszu be sentenced to imprisonment. The Judge noted that Ms Hosszu had trouble raising her daughter by herself, and suffered from depression. Ms Hosszu also has a 13 year old son, who resides with relatives.
The Judge noted that the father of Ms Hosszu’s daughter introduced Ms Hosszu to drugs. This, the Judge said, precipitated the commission of a number of mostly minor offences. I note that Ms Hosszu has not received the benefit of a suspended sentence of imprisonment, not having been sentenced to imprisonment before.
The Judge recorded that Ms Hosszu was disturbed by what she had done and had sought treatment from her general practitioner. She was prescribed an anti-depressant. She had stopped using illicit drugs. The Judge considered that Ms Hosszu’s prospects for rehabilitation were reasonably good, assuming that she abstained from using drugs. The Judge said that Ms Hosszu should be encouraged to continue the efforts that she had made to improve her life.
The Judge accepted that Ms Hosszu regretted her conduct. In particular, he noted that Ms Hosszu apologised to Ms Wallace, who was in court, during submissions on sentence.
In sentencing Ms Hosszu, the Judge remarked, correctly in my opinion, that the violence that she had inflicted on Ms Wallace and Mr Lozo-Plush was appalling. The Judge’s remarks indicate that he gave significant weight to the need to impose a sentence that would “deter people from engaging in malicious street violence”. Significantly for present purposes, the Judge accepted that Ms Hosszu was intoxicated at the time she committed the offences, but said that “little leniency can be extended ... on that basis.”
The Judge adopted a starting point of a single sentence of 14 months’ imprisonment. After reducing the sentence to be imposed on account of the guilty pleas, the Judge imposed a sentence of imprisonment for ten months. The Judge directed that Ms Hosszu serve four months of the sentence, the remainder to be suspended on condition that Ms Hosszu enter into a bond to be of good behaviour for six months commencing from the date of her release.
Fresh Evidence
Mr Stokes, counsel for Ms Hosszu on appeal, tendered a short report by Professor White, a pharmacologist. He sought to rely on the report insofar as it related to the effect that taking Xanax can have on a person. Mr Petraccaro, counsel for the Director, objected to the tender of the evidence.
The report states that Xanax is a brand name for the drug alprazolam, a member of the benzodiazepine group of drugs. It is used to treat anxiety and panic disorders. Professor White states that the effects of Xanax include sedation, reduced anxiety, confused and sometimes irrational thinking, impaired memory and disinhibited behaviour.
If taken in conjunction with alcohol, the effects of Xanax can be greater because alcohol has a number of effects in common with Xanax. They include disinhibited behaviour. Alcohol and Xanax together could lead to impulsive behaviour that might include aggression.
Professor White notes that the strength of the tablets taken by Ms Hosszu is not known. Nor does the evidence before the Judge disclose this. The evidence about when the alcohol and Xanax were consumed is also somewhat vague.
Section 359(c) of the CLCA confers on this Court the power to receive fresh evidence at the hearing of an appeal if to do so is in the interests of justice. The power is a wide one. In exercising this discretion, a court will have regard to the matters adverted to by the Court in R v Dorning (1981) 27 SASR 481 at 485-486. Of particular significance to this case is the condition that the relevant evidence “is such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive”.
There is no reason why the evidence of Professor White could not have been put before the District Court Judge. Had it been relied on, various matters of fact that remain unclear (in particular, the dosage of Xanax, and when the alcohol and Xanax were consumed), could have been explored. Unless they are explored, the report by Professor White leads nowhere.
The evidence which Mr Stokes seeks to lead would not have a material bearing on the outcome of the appeal. The Judge accepted that Ms Hosszu was intoxicated as a result of her consumption of alcohol and Xanax. By implication, as I have already noted, he accepted that the alcohol and Xanax contributed to Ms Hosszu behaving as she did. Although the Judge rejected the submission that Ms Hosszu misconstrued what had been said by the group of teenagers to be a discriminatory remark about Mr Hosszu’s disability, he said that even if she had been labouring under that misapprehension, what the teenagers had said to her when she approached them would have disabused her of that notion. It is also worth noting that Professor White’s evidence to the effect that Xanax can cause aggression supports the Judge’s finding that Ms Hosszu was “spoiling for a confrontation.” This could also support the Judge’s conclusion that Ms Hosszu had not, in fact, misconstrued what the teenagers had said in the manner that she suggested. In short, there is no reason to think that Professor White’s evidence could lead to a different approach to the sentence.
For these reasons, I would reject the tender of the evidence of Professor White.
Consideration of Submissions
As I said recently in R v Jongewaard [2009] SASC 346, the issue for this Court on appeal is whether the Judge was wrong in declining to suspend the sentence in its entirety. This Court does not simply substitute for the sentence imposed a sentence that it considers to be more appropriate. I refer to the observation of the majority in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
[25]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 (1936) 55 CLR 499 at 504-505 , 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”.
Mr Stokes did not identify any error of fact or law in the Judge’s sentencing remarks. The evidence upon which Mr Stokes sought to rely does not undermine the Judge’s findings of fact. It does not change the explanation for her conduct. In the end, Mr Stokes’ submission is that the decision of the Judge not to suspend the whole of the sentence results in a sentence that is unreasonable and manifestly excessive.
The fact that Ms Hosszu has no prior convictions for an offence involving violence and has not had the benefit of a suspended sentence of imprisonment in the past, and her contrition and attempts at improving her life were matters capable of supporting the suspension of the whole of the sentence that the Judge imposed. So was the circumstance that alcohol and Xanax played a part in the event, and the circumstance that she was caring for a young child. On the other hand, this was serious offending. The public are rightly concerned about this kind of gratuitous street violence. In those circumstances, the Judge was entitled to give significant weight to the need to impose a sentence that would send a deterrent message to those minded to commit similar crimes. It is clear that the Judge considered all relevant factors, including suspension of the sentence. The finding implicit in the Judge’s order that there was not good reason to suspend the whole of the sentence of imprisonment was open to the Judge. The decision not to suspend the whole of the sentence is not unreasonable.
I would grant permission to appeal, but would dismiss the appeal.
NYLAND J: I have read the reasons of the Chief Justice. I agree that the tender of the report of Professor White should be rejected.
For the reasons expressed by the Chief Justice, I agree that permission to appeal should be granted but that the appeal should be dismissed.
WHITE J: I agree with the Chief Justice.