R v Lepore - [2013] SASCFC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEPORE
[2013] SASCFC 13
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Blue)
14 March 2013
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 - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
Appeal against sentence - the appellant pleaded guilty to one count of indecent assault, two counts of aggravated assault, one count of attempting to pervent the course of justice and two counts of breach of bail - sentenced to a single penalty pursuant to s 18A of two years and two months' imprisonment, with a non-parole period of ten months - the Judge declined to suspend the sentence.
The appellant sought to adduce evidence not before the sentencing Judge, which raised the possibility that the defendant has dementia or some other mental impairment - the appellant submitted that, having regard to the fresh evidence, the sentencing discretion had miscarried.
Held: appeal allowed - District Court sentence set aside - resentenced to two years' imprisonment with a non-parole period of eight months, suspended on the defendant entering a three year bond.
It was in the interests of justice to admit the fresh evdience - the evidence could not have been obtained with reasonable diligence for use at sentencing, is credible, and would have had an important influence on the sentencing Judge's discretion - the evidence is sufficient to establish that the defendant suffered from a mental impairment at the time of offending - the sentencing Judge had no knowledge of that condition - the defendant resentenced having regard to his mental condition.
Criminal Law Consolidation Act 1935 (SA) s 20, s 340, s 353, s 359; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Supreme Court Civil Rules 2006 (SA) r 286, referred to.
R v Hallett [2012] SASCFC 143; R v Kikidis (2012) 112 SASR 148; R v Dorning (1981) 27 SASR 481; R v Gilby [2012] SASCFC 94; R v Smith (1987) 44 SASR 587; R v McIntee (1985) 38 SASR 432; R v Wiskich (2000) 207 LSJS 431; R v Mooney (unreported Vic CCA, 21 June 1978); R v Anderson [1981] VR 155, considered.

R v LEPORE
[2013] SASCFC 13
Court of Criminal Appeal: Sulan, Peek and Blue JJ

THE COURT: This is an appeal against sentence.
The defendant and appellant, Salvatore Gregory Lepore, pleaded guilty to one count of indecent assault, two counts of aggravated assault, one count of attempting to pervert the course of justice, and two counts of breach of bail.
The maximum penalty for indecent assault is eight years’ imprisonment. The maximum penalty for aggravated assault is three years’ imprisonment.[1] The maximum penalty for attempting to pervert the course of justice is four years’ imprisonment. The maximum penalty for a breach of bail is two years’ imprisonment or a fine of $10,000.
[1] Unless the assault is aggravated by the use of, or the threat of use of, an offensive weapon, in which case the maximum penalty is 4 years’ imprisonment: Criminal Law Consolidation Act 1935 (SA) s 20(3)(c).
On 3 August 2012 a Judge of the District Court sentenced the defendant to 2 years and 2 months’ imprisonment, and fixed a non-parole period of 10 months. The Judge declined to suspend the sentence.
On 11 December 2012 this Court allowed the appeal against sentence. The District Court sentence was set aside. In lieu thereof the defendant was sentenced to two years’ imprisonment with a non-parole period of eight months, that sentence being suspended upon the defendant entering into a three-year good behaviour bond. The Court indicated that it would give reasons later. We now publish our reasons.
Background
In September 2010, the defendant was driving in Kilburn. A woman, W, was walking in the area with her two children, aged nine and seven. The defendant stopped his car and offered W a lift home. She refused.
On 4 February 2011, the defendant saw W in a telephone box making a telephone call. W’s five-month-old baby was in a pram outside the telephone box. The defendant approached W and touched her on the buttocks. W asked the defendant to leave her alone, and pulled the pram and the baby into the telephone box. The defendant offered W money to have sex with him. She refused. The defendant walked to his car. W called 000. The defendant returned and reached into the telephone box. He touched W’s arm and breasts, and fondled one of her nipples. This conduct resulted in the charge of indecent assault.
The defendant discovered W was talking to police on her mobile phone, and offered her $400 not to complain. The defendant attempted to stuff $10 notes into W’s bra but she pushed him away. The defendant left the area. This conduct resulted in the charge of attempting to pervert the course of justice.
On 8 February 2011, the defendant was arrested and granted bail. One of the bail conditions was that the defendant was not contact W or enter the suburb of Kilburn.
On 9 February 2011, the defendant drove to Kilburn and approached W. He wound down his car window and asked W why she had called the police. W said it was because he had abused her. The defendant said “You will see” in an angry manner. This conduct resulted in the first charge of breach bail.
On 10 February 2011, the defendant approached two of W’s children as they walked to school. The children were aged seven and nine at the time. The defendant alighted from his car and threatened to kill the children’s family if they did not tell him where they lived. He swore at the children and attempted to pull them into his car but they ran away. This conduct resulted in the second charge of breach bail and the two counts of aggravated assault, the aggravating feature being that the defendant committed the offences knowing the victims to be under the age of 12.
On 11 May 2012, the defendant pleaded guilty to all offences.
Sentencing remarks
The sentencing Judge described the defendant’s conduct as serious and cowardly. It involved three distinct incidents of criminal conduct.
The defendant is 76 years of age and has no prior convictions. He receives treatment for glaucoma, high cholesterol, high blood pressure, gastric complaints and chronic neck pain. He has strong family support from his wife and three adult children. They have ensured that the defendant is supervised whenever he leaves the house.
The Judge referred to various medical reports which had been tendered. The defendant had been referred to a psychiatrist by his general practitioner who had been treating the defendant for stress-related complaints since 1999. Dr Giardini expressed his opinion that the defendant suffered from anxiety and stress, but that he had no mental illness. The Judge received a number of reports, none of which identified any condition which might explain what can only be described as bizarre conduct for a person of the defendant’s age who had lived a productive and blameless life up until this offending. The Judge was correctly concerned to impose a sentence which would act as a deterrent to the defendant, and to others who might be inclined to offend in a similar manner.
The Judge imposed a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). He set a notional head sentence of 12 months’ imprisonment for the offences of indecent assault and attempting to pervert the course of justice committed on 4 February 2011. For the offences of aggravated assault committed on 10 February 2011, the Judge set a notional head sentence of 15 months’ imprisonment. He imposed a sentence of one week’s imprisonment for the defendant’s breaches of bail, to be served concurrently with the longer sentences. Allowing a discount of one month for time spent in custody and on home detention bail, a single head sentence of two years and two months’ imprisonment was imposed.
The Judge considered the defendant’s age, lack of prior convictions, employment record, family support and prospects of rehabilitation. He fixed a non-parole period of 10 months. The sentence was not suspended.
Fresh evidence
The defendant sought to adduce evidence before this Court that was not before the sentencing Judge. That evidence raises the possibility that the defendant has dementia or some other mental impairment. The Court determined to admit the fresh evidence.
In R v Hallett,[2] Gray J noted that, while the power to admit fresh evidence might be a necessary incident to this Court’s powers under ss 340 and 353 of the Criminal Law Consolidation Act 1935 (SA), neither provision expressly addresses the reception of new evidence on appeal.
[2] [2012] SASCFC 143.
Section 359 of the Act confers supplemental powers on the Court. Relevantly, ss 359(b), (c) and (f) provide:
For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice-
[…]
(b) order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Supreme Court or before any officer of the Supreme Court or justice of the peace or other person appointed by the Full Court for the purpose, and allow the admission of any depositions so taken as evidence before the Full Court; and
(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with such consent; and
[…]
(f) 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; and
[…]
Subsections (b) and (c) confer an express power to hear oral testimony and admit evidence by way of depositions or affidavits. Where evidence does not fall within these categories, subsection (f) gives power for the admission of the material. Rule 286 of the Supreme Court Civil Rules 2006 (SA) provides that the Supreme Court may, in its discretion, hear further evidence on a question of fact.
Regardless of which statutory power is invoked, the admission of evidence on appeal calls for the exercise of a broad discretion. The exercise of this discretion is guided by principles and rules of practice which have developed over time.
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.[3]
[3] See R v Kikidis (2012) 112 SASR 148, [25], citing R v Dorning (1981) 27 SASR 481, 485.
In R v Dorning,[4] the Court provided guidance on the exercise of the discretion.[5] The following matters should be considered:[6]
·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, although it need not be decisive; and
·the evidence should appear credible.
[4] (1981) 27 SASR 481.
[5] See also R v Gilby [2012] SASCFC 94.
[6] (1981) 27 SASR 481, 485-486.
In R v Smith, King CJ said:[7]
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.
[7] (1987) 44 SASR 587, 588.
In R v McIntee,[8] 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…
[8] (1985) 38 SASR 432, 435.
The medical and psychiatric evidence sought to be put before this Court expands upon the medical evidence before the Judge.
Counsel for the defendant submits that the evidence satisfies the three criteria laid down in Dorning. Counsel for the Director concedes that the evidence could not have been obtained with reasonable diligence for use at sentencing, and that the evidence appears credible. The Director’s sole contention in opposing the application is that the evidence would not have had an important influence on the sentencing Judge’s discretion. The Director submits that:
·the five reports which were before the Court at the first hearing do no more than raise the possibility of a dementive illness in the defendant;
·as to the three additional reports which are now before the Court, they are not conclusive as to a diagnosis of dementia in the defendant;
·the authors of the three additional reports are limited in the conclusions they can draw due to not having the full picture of the matter before them. Each of the reports considers that a SPECT scan is important in diagnosing dementia, and this has not been conducted. The authors of the reports were not provided with any declarations nor the account of the offending given by the defendant’s counsel to the sentencing Judge; and
·there is no evidence as to how the defendant’s impairments could have impacted his behaviour at the time of the offending, and thus the reports could not have had an important influence on the sentencing Judge.
Whether fresh evidence would probably have had an important influence on the result of a case is an objective question. It should be determined by reference to whether a reasonable person in the sentencing Judge’s position would have been materially influenced by the evidence. Whether the fresh evidence would have an important influence can be determined by comparing the conclusions of the sentencing Judge with the conclusions that would have been reached by a reasonable person in the Judge’s position armed with the fresh evidence.
During sentencing submissions, the Judge thought it quite extraordinary that a man of the defendant’s age, with no prior convictions, would embark on this course of offending. The Judge considered that there may be some “psychiatric trigger” for the defendant’s behaviour. The Judge attempted to ascertain what might explain the defendant’s conduct. He adjourned the sentencing submissions on several occasions searching for an explanation of the defendant’s conduct.
The Judge had the benefit of two reports by Dr Giardini and a report by Dr Crea. None of the reports provided an explanation for the defendant’s conduct. Counsel intimated that the Judge should sentence the defendant based on this material rather than seeking further reports.
In his remarks, the Judge said:
You were referred to Dr Giardini, a psychiatrist, for assessment and management of your anxiety and obsessional fixation on your gastric complaints. Dr Giardini confirmed that you suffer from anxiety and stress but he is of the opinion that you do not have any kind of mental illness that predisposed or caused you to offend. However, he gained the impression that you are of below average intellectual functioning, if not intellectually impaired to a degree. I accept his opinions. However, he has also expressed the view that there is no risk of you reoffending based on the state of your mental health. I have reservation about this aspect of his reports. In the absence of any cogent explanation for your behaviour, for which, on the material before me there appears to be none, I am not prepared to accept that you do not present a continuing risk to the community.
The evidence now sought to be put before the Court goes to explain the reason for the defendant’s behaviour.
We turn to that evidence. The first is a report of Dr Leonello, a consultant physician, dated 4 October 2011.[9] The report should be treated with some caution as it is marked “not to be used for medico-legal purposes.” Dr Leonello reports that the defendant had scored 25 out of 30 in a test of cognitive functioning, which Dr Leonello considered a “borderline” score. Dr Leonello concludes:[10]
A CT scan of the head today [4 October 2011] has revealed some volume loss in both the supra and infratentorial brain in keeping with some cerebral atrophy. He may well have an early dementing process.
[9] While the report was written prior to sentencing, it was not before the Judge. It is a report written to another doctor which appears to have only come to the attention of the defendant’s solicitor as a result of being annexed to a latter report dated 19 September 2012.
[10] See Affidavit of M R Love sworn 20 September 2012
In a report dated 27 August 2012, Dr Giardini expresses the view that more testing should be conducted in order to determine whether the defendant suffers from dementia. He also says:
If Mr Lepore has a dementing process affecting the frontal loves of his brain this could explain the changes in his behaviour that could have been caused by pathological behavioural disinhibition due to frontal lobe dysfunction.
A report of Dr Leonello dated 19 September 2012 concludes:
… [I]t is my opinion that [the defendant] had early dementia when I saw him in September-October 2011. It is likely that the manifestations of dementia had started well before this and if further assessment and investigations confirm that he has frontal lobe dysfunction it is likely that this would have led to the disinhibited and abnormal sexual behaviour that he displayed in February 2011 when he committed the offences…
Dr Raeside, an experienced forensic psychiatrist, considers that a SPECT scan and neuropsychological assessment is important in order to evaluate whether the defendant has an underlying dementing process or abnormal brain function. Dr Raeside says:
...[If the defendant] does indeed have underlying frontal lobe cognitive impairment then this not only would explain his current difficulties and unfitness, but also raises serious concerns about his mental competence to commit the alleged offences (assuming the objective elements are met).
The frontal lobes represent a large area of the brain and brain centres within the frontal lobe of [sic] numerous interconnections with other parts of the brain. These include connections with emotion and mood centres as well as cognitive (thinking) centres. Because of this complexity a number of different clinical syndromes can be associated with damage in this area. The main problems relate to cognitive impairment, behavioural difficulties, and emotional disturbance. Problems with memory, attention, and reasoning can occur. Inappropriate emotional reactions are common… Defects in planning and behavioural control can be seen resulting in socially inappropriate behaviour at times. Poor frustration tolerance, irritability, and concrete thinking may complicate this…
… The allegations against [the defendant] suggest impulsive, disorganised, and disinhibited behaviour of a sexual and aggressive nature. Even if one postulates a sexual motive, perhaps borne of frustration following his recent prostate cancer, radiotherapy, and decreased sexual functioning, his actions still remain quite bizarre. As such, if there is frontal lobe impairment then this would overwhelmingly be the most likely explanation for his behaviour, suggesting impairment in his ability to control his behaviour (although perhaps not totally otherwise he would be engaging in similar behaviour constantly)…

Dr Reid, an experienced forensic neuropsychologist, concludes:
… I believe Mr. Lepore is probably demonstrating moderately severe cognitive impairment in the context of a cerebrovascular dementing illness….
[…]
At most, I would consider [the defendant’s] ability to effectively evaluate and comprehend the nuances of another person’s behaviour, such as the victim in this matter, would be compromised due to his cognitive deficits. In the absence of any evidence of severe disinhibition or impulsivity, I have difficulty accepting that this would then extend to the types of behaviour he has allegedly perpetrated.
It is unfortunate that, despite numerous intimations from psychiatrists, the defendant has not undergone further scans. Nevertheless, the medical evidence raises the likelihood of a dementive illness. The defendant suffers from a frontal lobe impairment. In our view, the evidence is sufficient to establish that the defendant suffered from a mental condition at the time of offending. The sentencing Judge had no knowledge of that condition. In light of the report of Dr Raeside, we reject the Director’s submission that there is no evidence as to how the defendant’s condition could have impacted his behaviour at the time of the offending. It is in the interests of justice to admit the medical evidence. The evidence should be admitted insofar as it helps to explain the defendant’s mental state at the time of the offending and prior to sentencing.
Mental impairment
In R v Wiskich,[11] Martin J reviewed authorities in various jurisdictions as to the task of a sentencing court in cases where the offender was suffering from a mental condition. His Honour referred to R v Mooney, where Young CJ said:[12]
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... 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.
[Citations omitted.]
[11] (2000) 207 LSJS 431.
[12] (unreported Vic CCA 21 June 1978); quoted in R v Anderson [1981] VR 155, 160 and R v Wiskich (2000) 207 LSJS 431, 440.
In R v Wiskich, Martin J said:[13]
…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.
[13] (2000) 207 LSJS 431, 457-458.
The sentencing Judge did not, and on the material before him could not, have regard to the mental impairment of the defendant evidenced in the reports now before the Court. It follows that the Judge had no opportunity to consider the impact of that disorder on the defendant’s thought processes and the capacity of the offender to appreciate the gravity of his conduct. Having regard to the fresh evidence to which we have earlier referred, we conclude that the sentencing discretion miscarried. This Court’s jurisdiction to resentence was, therefore, enlivened.
Resentencing
In resentencing, this Court reduced the defendant’s term of imprisonment to two years with a non-parole period of eight months (both reflecting approximately two months spent by the defendant in custody after sentencing).
We had regard to the seriousness of the defendant’s conduct and his personal circumstances. The sentencing Judge regarded the defendant’s offending as serious. We agree.
The defendant has no prior convictions and a stable employment history. He pleaded guilty to the offences. He spent two months in custody since sentencing and has spent 20 months on home detention bail.[14]
[14] 18 months between initial release from custody and sentencing on 3 August 2012, plus two months between the two CCA hearings.
The defendant has good prospects of rehabilitation. If he is adequately supervised, the risk of his reoffending is remote. He completed a lengthy period of home detention bail without incident. These factors weighed in favour of suspension and indicated the likelihood that the defendant would comply with the conditions of a suspended sentence bond.
The sentencing Judge found that the notion of general deterrence was tempered somewhat in this case by reason of the defendant’s low intellectual functioning. We were satisfied that in the circumstances of this case general deterrence should play an even lesser role. On the evidence, the defendant’s impairment appears somewhere between moderate and severe. We were satisfied that disinhibition resulting from that mental impairment was a cause of the defendant’s offending. The defendant’s impairment was a factor which weighed in favour of suspending the sentence imposed.
In the circumstances, there was good reason to suspend the sentence.
Conclusion
The appeal was allowed. The District Court sentence was set aside. In substitution, the defendant was sentenced to two years’ imprisonment with a non-parole period of 8 months. That sentence was suspended on the defendant entering a bond in the sum of $500 for a period of three years. The conditions of the bond were:
·that he be of good behaviour;
·that he be under the supervision of a community corrections officer and obey the directions of that officer;
·that he undertake such assessment, psychiatric or psychological treatment as advised and directed by Dr Giardini; and
·that he reside at 9 Stephen Terrace, St Peters SA throughout the period of the bond and not leave those premises except in the company of Anna Lepore, Franco Lepore, Armando Lepore or Antonio Lepore or any other person approved by his community corrections officer.