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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lepore

Details

AGLC: R v Lepore [2013] SASCFC 13
Case: [2013] SASCFC 13
Decision Date: 14 March 2013

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, who had pleaded guilty to indecent assault, two counts of aggravated assault, attempting to pervert the course of justice, and two counts of breach of bail. The sentencing judge had imposed a two-year and two-month term of imprisonment with a non-parole period of ten months, and declined to suspend the sentence. The appeal was heard by Sulan, Peek, and Blue JJ of the Full Court of the Supreme Court of South Australia.

The primary legal issues before the Full Court were whether to admit fresh evidence concerning the appellant's potential dementia or other mental impairment, and if admitted, how that evidence should influence the determination of the appeal against sentence. The Court was required to consider the principles governing the admission of fresh evidence on appeal and the weight to be given to such evidence in sentencing.

The Full Court determined that there was good reason to admit the fresh evidence regarding the appellant's mental state, noting that the admission of such evidence on appeal is a matter of broad discretion guided by principles that balance the public interest in the finality of litigation against the probability that the new material would have an important influence on the outcome. The Court reasoned that the fresh evidence, raising the possibility of dementia or mental impairment, was of significant relevance to sentencing. Consequently, the Court allowed the appeal, set aside the District Court sentence, and substituted a sentence of two years' imprisonment with a non-parole period of eight months. This substituted sentence was suspended on the appellant entering into a three-year good behaviour bond with specific conditions, including undertaking psychiatric or psychological treatment and residing at a specified address under supervision.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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