R v Hunter

Case [2015] SASCFC 84

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HUNTER

[2015] SASCFC 84

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)

12 June 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - TO CONSIDER FRESH EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - HARDSHIP - TO OTHERS

Appeal against sentence. The appellant pleaded guilty to two counts of attempted aggravated theft by force (robbery).  On two separate occasions on 14 January 2014 the appellant unsuccessfully attempted to "carjack" a member of the public’s vehicle by using a machete.  On 3 September 2014 the appellant was sentenced in the District Court to seven years imprisonment with a non-parole period fixed at five years.  Both the head sentence and non-parole period were backdated to commence 14 January 2014, being the date the appellant was first taken into custody.

The matter was first heard by this Court on 20 March 2015. At that time it became apparent that various lower court documents had erroneously recorded the appellant as having been charged with two completed offences of aggravated theft by force (robbery) as opposed to attempted offences.  The appeal was adjourned to enable counsel to take instructions.  When the appeal resumed on 18 May 2015, counsel indicated that it was common ground that the errors were merely administrative and that the appellant had been properly convicted of, and sentenced for, two attempt offences. The appeal proceeded on that basis.

The appellant seeks to appeal against the non-parole period imposed. The appeal is brought on the basis of evidence now available and said to be fresh, concerning the effect of the sentence on the appellant’s two youngest children and their grandfather who is their full-time carer.  The appellant contends that the circumstances are now such that had they been known or better understood by the sentencing Judge, a lower non-parole period would have been imposed.

Held by Nicholson J (Gray and Peek JJ agreeing), dismissing the appeal:

1.  Whilst hardship to the dependants of an offender is a factor relevant to sentence, it is not generally taken into account other than in extreme or exceptional circumstances. Whilst the problems confronting the appellant’s children and their grandfather as a result of their father’s incarceration are such as to engender substantial sympathy, the situation is not one that suggests extreme or exceptional circumstances.

2.  The appeal is only as to the length of the non-parole period.  Even if it were to be reduced, the appellant, given the seriousness of his offending and his criminal record, could still expect to be subject to a lengthy period of imprisonment before being entitled to apply for release on parole. Even then, his release on parole would not necessarily be a foregone conclusion.  Any reduction…

Continue reading R v Hunter

Sign in free to access the full text

Details
AGLC
R v Hunter [2015] SASCFC 84
Case
[2015] SASCFC 84
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against sentence brought by the appellant, who had pleaded guilty to two counts of attempted aggravated theft by force. The appellant had unsuccessfully attempted to carjack two members of the public using a machete on 14 January 2014. He was subsequently sentenced in the District Court to seven years imprisonment with a non-parole period of five years, both backdated to commence from his date of custody. The appeal was heard by Gray, Peek, and Nicholson JJ.

The central legal issue before the court was whether fresh evidence, which the appellant sought to introduce, was admissible and, if so, whether its exclusion at the original sentencing hearing would result in an unjust sentence. The court considered the principles governing the reception of fresh evidence on a sentence appeal, which require the evidence to have been unavailable or unobtainable with reasonable diligence at the initial hearing, to be credible, and likely to have an important influence on the outcome. The court also addressed the relevance of hardship to dependents under section 10(1)(n) of the Criminal Law (Sentencing) Act 1988, noting that such hardship is generally only considered in extreme or exceptional circumstances.

The court reasoned that while the circumstances of the appellant's children and their caregivers were tragic, they did not constitute extreme or exceptional circumstances that would warrant a merciful approach to sentencing. The court found that the children were in state care and, at least for the foreseeable future, in the capable care of their grandfather, and that these matters were likely before the sentencing judge. The court concluded that the proposed fresh evidence was not of such a nature as to have an important influence on the sentence and would not lead to a materially significant modification of the non-parole period.

Consequently, the court ordered that the appeal be dismissed and directed the Magistrates Court and the District Court to correct their records to accurately reflect the relevant offences.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As earlier indicated, no complaint is now made about the approach taken by the sentencing Judge. The appeal will turn on the nature of new evidence that the appellant seeks to put before the Court; whether it is properly to be characterised and admissible as fresh evidence and, if so, whether it is of such a nature that to ignore it would result in an unjust sentence having been imposed. Legal principles relevant to the reception of fresh evidence on a sentence appeal This Court, on hearing an appeal against sentence, has a discretion to receive fresh evidence, that is, evidence that either was not available or could not, with reasonable diligence, have been obtained for use at the initial hearing. The proper approach to the exercise of the discretion is well understood. The Full Court in R v Lepore,[4] by reference to other authorities, explained the position in this way. [4] [2013] SASCFC 13 at [23]-[26] (Sulan, Peek and Blue JJ).Determining where the interests of justice lie in fresh evidence applications requires the weighing up of two broad considerations. The first is the public interest in the finality of litigation, which requires that all reasonable steps be taken to put all material evidence before the sentencing court. Weighed against this is the probability that the fresh material would have an important influence on the result of the case.[5] [5] See R v Kikidis (2012) 112 SASR 148, [25], citing R v Dorning (1981) 27 SASR 481, 485. In R v Dorning,[6] the Court provided guidance on the exercise of the discretion.[7] The following matters should be considered:[8][6] (1981) 27 SASR 481.[7] See also R v Gilby [2012] SASCFC 94.[8] (1981) 27 SASR 481, 485-486. • 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, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and• the evidence should appear credible.In R v Smith, King CJ said:[9]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. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence. In R v McIntee,[10] King CJ observed: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…[9] (1987) 44 SASR 587, 588. [10] (1985) 38 SASR 432, 435.

Decision

Reasons for decision

GRAY J (dissent) NICHOLSON J (dissent)
For these reasons, any reduction of the non-parole period may do little to alleviate the concerns raised on behalf of the children, DM and TB. Conclusion The difficult circumstances confronting the children, the absence of their mother and the fact that they most likely would have to be in the care of their grandfather or in State care for, at least, the period of any non-parole period set was squarely before the sentencing Judge. In my view, the proposed fresh evidence is not such as to have an important influence in the sense of leading to a materially significant modification of the non-parole period set by the Judge. I would refuse to admit, on the appeal, the materials sought to be adduced as fresh evidence and I would dismiss the appeal. I would make the following orders.(1)Appeal dismissed.(2)The Magistrates Court is directed to correct its file endorsements and the committal for sentence notice so as to accurately record the relevant offences.(3)The District Court is directed to correct its report as to prisoner tried so as to accurately record the relevant offences.

Ratio Decidendi

Legal Principle Established

Established by:

Subsection 10(1)(n) of the Criminal Law (Sentencing) Act 1988 provides that in determining the sentence for an offence, one of the factors to which a court must have regard is the probable effect any sentence under consideration would have on dependents of the defendant. The authorities in this area are to the effect that hardship to the dependents of an accused person is not generally to be taken into account in an accused’s favour other than in extreme or exceptional circumstances.[14] The probable effect on dependants has been said to be a limited aspect of the power to exercise mercy[15] and the hardship must be of such a serious character as to call for a merciful approach to sentencing.[16] It must be a matter that goes beyond the hardship which inevitably results from a bread winner being sent to prison; there must be something that demands the exercise of mercy.[17][14] See for example R v Wirth (1976) 14 SASR 291; R v Moffa (No 2) (1977) 16 SASR 155.[15] Markovic v R (2010) 30 VR 589.[16] R v Penno (2004) 236 LSJS 457; [2004] SASC 354. [17] R v Maslen (1995) 79 A Crim R 199; Neill v Police [1999] SASC 270.Consideration There is no doubt that the problems confronting A and B as a result of their mother’s drug addiction and her rejection of them and their father’s lengthy term of imprisonment are significant. They will continue to suffer emotionally, psychologically and financially. There is also no doubt that DM and TB, by having agreed to assume responsibility for the two children, have had their lives significantly disrupted and that as a result DM, at least, is experiencing financial difficulty, anxiety and other ill health. It is a very sad story and one that inevitably engenders substantial sympathy for the children, for their grandfather, DM, and for TB. Nevertheless, the children are the responsibility of and, at least, formally, in the care of the State. If DM finds that he is unable or unwilling to continue to care for the children over the long term other arrangements will have to be made by the State. This is a very sad but, unfortunately, not an unusual situation. The question is whether, as events have transpired since sentence, the circumstances of the children and the circumstances of DM and TB, as described in the affidavit evidence, are so exceptional as to demand mercy and a sentence different from that ordered by the Judge. In my view, there are two reasons why this appeal should fail. The first is that the situation of the two children, whilst a tragic one, is not one that suggests extreme or exceptional circumstances. It is inevitable that when a parent is imprisoned there will be substantial, and at times irremediable, repercussions for that person’s family, including for their children. This will be all the more so where that parent is at the time of being incarcerated the sole functioning parent. In this case, proper steps have been taken to care for the children. They are in State care and, at least for the foreseeable future, they are in the capable and loving care of their grandfather. I appreciate that this has come at some great cost to DM and to his partner, TB. However, they are not dependents of the appellant. Whilst their circumstances are not to be ignored, I do not place as much weight on the difficulties caused to DM and TB as is to be placed on the circumstances of the two children themselves. If DM and TB were not available to care for the children, the children would be in State care and likely placed in some form of foster care.