R v Maniadis

[1996] QCA 242

IN THE COURT OF APPEAL	[1996] QCA 242
SUPREME COURT OF QUEENSLAND

C.A. No. 502 of 1995

Brisbane

[R. v. Maniadis]

THE QUEEN

v.

DARIOS ATHANASIOS MANIADIS

(Applicant)

Fitzgerald P.
Davies J.A.

Helman J.

Judgment delivered 19/07/1996

Joint reasons for judgment of Davies J.A. and Helman J.; separate concurring reasons of
Fitzgerald P.

APPLICATION GRANTED. APPEAL ALLOWED. SENTENCES IMPOSED BELOW SET ASIDE. IN LIEU, SUBJECT TO THE APPLICANT'S CONSENT, IN EACH CASE ORDER THAT THE APPLICANT BE RELEASED UNDER THE SUPERVISION OF AN AUTHORISED CORRECTIVE SERVICES COMMISSION OFFICER FOR A TERM OF THREE YEARS UPON THE FOLLOWING CONDITIONS:

1.          THAT THE APPLICANT MUST NOT COMMIT ANOTHER OFFENCE DURING THE PERIOD OF THE ORDER;

2.          THAT THE APPLICANT MUST REPORT TO AN AUTHORIZED COMMISSION OFFICER AT BRISBANE WITHIN SEVENTY-TWO HOURS;

3.          THAT THE APPLICANT MUST REPORT TO AND RECEIVE VISITS FROM AN AUTHORIZED COMMISSION OFFICER AS DIRECTED BY THE OFFICER;

4.          THAT THE APPLICANT MUST NOTIFY AN AUTHORIZED COMMISSION OFFICER OF EVERY CHANGE OF PLACE OF RESIDENCE OR EMPLOYMENT WITHIN TWO BUSINESS DAYS AFTER THE CHANGE HAPPENS;

5.          THAT THE APPLICNT MUST NOT LEAVE OR STAY OUT OF QUEENSLAND WITHOUT THE PERMISSION OF AN AUTHORIZED COMMISSION OFFICER;

6.          THAT THE APPLICANT MUST COMPLY WITH EVERY REASONABLE DIRECTION OF AN AUTHORIZED COMMISSION OFFICER;

7.          THAT THE APPLICANT MUST UNDERGO SUCH MEDICAL AND PSYCHIATRIC TREATMENT AS MAY SEEM APPROPRIATE TO DR. FONG THE SENIOR MEDICAL OFFICER COMMUNITY FORENSIC MENTAL HEALTH SERVICE OR SUCH OTHER MEDICAL PRACTITIONER AS MAY SEEM APPROPRIATE TO AN AUTHORIZED COMMISSION OFFICER;

8.          THAT THE APPLICANT UNDERTAKE SUCH DRUG AND ALCOHOL COUNSELLING AND ATTEND SUCH ANGER MANAGEMENT OR OTHER PROGRAMME AS MAY BE CONSIDERED APPROPRIATE BY AN AUTHORIZED COMMISSION OFFICER.

CONVICTIONS RECORDED IN EACH CASE.

CATCHWORDS:	CRIMINAL - admissibility of fresh evidence on an application - evidence discovered after sentencing - s.668E(3) Criminal Code - R. v. Cornale [1993] 2 Qd.R. 294 - factors in determining appropriate sentence.
Counsel:	Mr. D. Lynch for the applicant Mr. M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the applicant Queensland Department of Public Prosecutions for the respondent
Hearing Date:	28 February 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19/07/1996

The circumstances material to this proceeding are set out in the joint reasons for judgment of Davies J.A. and Helman J.

I agree with their Honours that the decision of this Court in R. v. Cornale [1993] 2 Qd.R. 294 should be confined to changes in the law between sentencing and an application for leave to appeal against the sentence imposed, and that the Court has a discretion to admit further evidence on an application for leave to appeal against sentence which is to be exercised in the interests of justice.

I also agree with their Honours that the sentences imposed were manifestly excessive and, for the reasons which they give, that the application should be granted, the appeal allowed and the orders which they propose substituted.

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND HELMAN J.

Judgment delivered the 19th day of July 1996

This is an application for leave to appeal against sentence. The applicant, who is 21 years old, was convicted on his own plea in the District Court at Ipswich on 17 November 1995 on two counts of stalking with circumstances of aggravation. The stalking offences consisted of a series of 24 telephone calls made by the applicant to the Evans family in January and February 1995. The calls were obscene and, in some cases, threatening. The trial Judge sentenced the applicant to six months imprisonment on each count and a further three years probation upon conditions which included one that he take part in counselling and satisfactorily attend other programs as directed by the Court or an authorised Correctional officer and one that he undergo such medical, psychologist or psychiatric examination or treatment as may be directed by his probation officer.

The applicant had one previous conviction, on 25 March 1992, for assault. That offence involved threatening with a knife a 28 year old woman pushing a pram containing her 18 month old child and trying to force her to go into an area of bushland. He was sentenced to two years probation for that offence and ordered to serve 120 hours community service. In July 1995 the applicant served approximately one month in prison for a breach of his bail conditions in respect of the stalking charges.

Upon the hearing of this appeal counsel for the applicant sought to tender psychiatric and psychological reports concerning the applicant. They consisted of two reports of Dr. Fong, a senior medical officer in the Community Forensic Mental Health Service dated 30 January and 28 February 1996, a report of Dr. Fama, a consultant psychiatrist, dated 7 February 1996 and a report from Ms. Lennon, a research psychologist, dated 22 November 1995. No psychiatric or psychological evidence had been tendered before the learned sentencing Judge and it was frankly acknowledged on behalf of the applicant that, without this evidence the appeal must fail; that on the evidence before the learned sentencing Judge this Court could not interfere with the sentences imposed.

The applicant submitted that these reports indicated his psychological state at the time of the sentence. It was submitted that they were relevant in two ways. First they showed that, at the time of sentence, the applicant was so deeply depressed at the prospect of imprisonment that he was potentially at risk of committing suicide. Secondly, it was said, they showed that he was suffering from depression at the time he committed the stalking offences. The respondent opposes the introduction of this evidence and its reception is therefore the first question which must be resolved in this application.

During the course of argument the Court suggested that it might be helped by a pre- sentence report if the above evidence became admissible and if, after considering it, it became necessary to consider what sentencing options were open. With the consent of the parties the Court then requested the Corrective Services Commission to cause to be prepared and submitted to the Court the following reports, conditionally upon the admission of the above evidence and the consequent need to consider sentencing options:

1.          A report by a psychiatrist other than Doctors J. Fong and P. Fama upon the following matters:

a) given the psychiatric condition of Darios Athanasios Maniadis, the types of psychiatric treatment that could be provided to him:-

i)      whilst on probation and not in prison; and

ii) whilst in prison;

b) an opinion upon the likely effectiveness of all of the abovementioned forms of treatment.

2.          A report by a Community Corrections Officer upon the following matters:

a) given the nature of the offences committed by Darios Athanasios Maniadis, the programmes, counselling or other rehabilitative measures that could be adopted in relation to him:-

i)      whilst in prison; and

ii) whilst on probation;

b) an opinion upon the likely effectiveness of such programmes, counselling, etc.

Section 668E(3) of the Criminal Code states the power of this Court on appeal to quash a sentence and pass another in its stead. For reasons which we shall mention shortly, that provision should be construed in the context which includes sub-s.(1) which deals with appeals against conviction. Section 668E relevantly provides:

" (1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

...
(3) On an appeal against a sentence, the Court, if it is of opinion that some

other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

The effect of sub-s.(1) has been authoritatively decided by the High Court in Ratten v. The Queen[1]. There the court decided that, pursuant to an analogue of that sub-section, an appellate court:

[1] (1974) 131 C.L.R 510.

(1)

may order a new trial where fresh evidence (that is evidence which was not actually available to the appellant at the time of trial and which could not then have been available to him by the exercise on his part of reasonable diligence in the preparation of his case) was capable of being accepted by the jury and, if accepted, was likely to produce a different verdict; and

(2)

may admit relevant and credible new evidence, notwithstanding that it is not fresh in the above sense, if the court is satisfied, on the basis of that evidence, that the guilty verdict should be set aside either because it is satisfied that innocence is shown or because the existence of a reasonable doubt is established. Subject to what we say later about the decision of this Court in R. v. Cornale[2] the power

[2] [1993] 2 Qd.R. 294.

to admit evidence not adduced below appears to be at least as wide in an appeal against sentence as in an appeal against conviction. In an appeal against conviction the grounds of unreasonableness, that the evidence did not support the verdict and error of law all appear to relate to a verdict upon the evidence adduced at trial and the law existing at the time of trial. Only the ground of miscarriage of justice appears to allow the admission of evidence not adduced at trial. The sole ground in sub-s.(3) that some other sentence is warranted appears to allow at least the same latitude to an appellate court to admit such evidence.

That is not to say that the discretion to admit new evidence in an appeal pursuant to sub-s.(3) will be commonly exercised by an appellate court[3]. But a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh in the above sense, if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive[4]. Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed[5].

[3]             See for, example, R. v. Lanham [1970] 2 N.S.W.R. 217, R. v. Brett [1983] 1 Qd.R. 38.

[4]            Cf. Knights (1993) 70 A.Crim.R. 105.

[5]             As in R. v. M C.A. No. 268 of 1995, judgment delivered 5 December 1995, unreported;

There will no doubt be cases in which, notwithstanding that, if such evidence were admitted some other sentence would be warranted, the evidence should nevertheless be excluded. Where the evidence was known to the appellant at the sentence hearing and deliberately withheld that will generally be so.

However we would not agree with the majority of the New South Wales Court of Criminal Appeal in Goodwin[6] that, for such evidence to be admissible on appeal, two conditions which must always be satisfied are that, if the existence of the evidence is known to the appellant, its significance was not realised by him and that its existence was not known to the appellant's legal advisers at the time of the sentence hearing. No doubt where those conditions are absent such evidence will usually be excluded but that may not always be so. In the end, the reception of such evidence will depend on whether, if it were excluded, there would be a miscarriage of justice; and it would be undesirable, in our view, to state in advance those matters which, in every case, must be proved in order to establish such a miscarriage.

[6]             (1990) 51 A.Crim.R. 328.

Before turning to the facts of this case it is necessary to consider whether the decision of this Court in Cornale precludes it from reconsidering this sentence because, as we have previously mentioned, it cannot be established that, on the evidence before the learned sentencing Judge, any other sentence should have been passed. In Cornale two members of this Court construed the words "and should have been passed" in s.668E(3) as preventing it from imposing, on appeal, a sentence which could not, at law, have been imposed at the time when the sentence under appeal was imposed. In consequence they held that this Court, upon allowing an appeal against sentence and substituting a new sentence for that imposed below, could not impose a suspended sentence for an offence where the provision conferring power to impose such sentence came into force after the date of the original sentence but before the appeal was heard.

In our view the ratio of the joint judgment in that case is confined in its operation to changes in the law relating to the level of sentence between the date of imposition of that sentence at first instance and the date of appeal. This was to construe s.668E(3) as a statutory application of the general principle that legislation which is not merely procedural should not be construed so as to have a retrospective operation unless that construction appears clearly from its terms[7]. That construction, as their Honours pointed out, is consistent with s.204(5) (now sub- s.(6)) of the Penalties and Sentences Act 1992.

[7]           Maxwell v. Murphy (1957) 96 C.L.R. 261 at 267; Fisher v. Hebburn Ltd. (1960) 105

Even if, however, contrary to the view expressed in the preceding paragraph, s.668E(3) precluded consideration by this Court on appeal of facts occurring after the date of sentence, it would not affect the admissibility of evidence of such facts to the extent only that they showed the true state of affairs existing at the time of sentence. That was the basis upon which the further evidence in this appeal was sought to be adduced. In our opinion the above reports should be admitted into evidence.

The reports of Dr. Fong and Ms. Lennon are hearsay but uncontradicted evidence that the applicant was sexually assaulted whilst he was in prison in July 1995 and support a conclusion that, because of his psychiatric condition, this assault engendered in him an irrational fear of prison causing an exceptionally high risk of suicide if he is sent to prison again. This fact and opinion were not revealed to the learned sentencing Judge, apparently because the applicant did not tell Ms. Lennon or Dr. Fong of the assault or of his fear until after 17 November 1995. It is unfortunate that Dr. Fama the consulting psychiatrist was not asked to express an opinion on the risk of suicide if the applicant were again sent to prison but this Court is entitled to and should accept that fact and opinion expressed.

As to whether the applicant, when he committed the offences, was suffering from a depressive condition, there appears to be a difference of opinion between Dr. Fong and Dr. Fama. Dr. Fong was of opinion that the applicant was suffering from a major depression with psychotic symptoms at the time of commission of these offences, to such an extent that he was unable to appreciate the distress that he caused his victims. Dr. Fong also thought that his behaviour was impulsive rather than premeditated. Dr. Fama, on the other hand, thought that the transcript of the telephone calls which the applicant made read as a persistently crude, depraved conversation indicative of regressive, perhaps drunken, sexual hostility; that the nature of the offences was not typical of what might be expected to be associated with a depressive illness; and that a partial explanation was possible in terms of alcohol and drug intoxication in a sexually immature personality. He concluded that the offending may have represented a transient, extreme response to stress and intoxication by an emotionally unstable personality. However he thought it worrying that the applicant's previous conviction was also for a hostile act of intimidation with probable covert sexual intent.

The facts that the applicant, at the time, had lost the emotional support of his sisters, who had gone overseas and upon whom he had been dependent, and had been subjected to substantial emotional stress by his father's demands on him and that, it appears in consequence, he began heavy frequent consumption of alcohol and frequent use of marijuana tend to support Dr. Fong's view that he was extremely depressed.

Both doctors commented on the applicant's apparent remorse for his conduct and thought that his prognosis was fair provided he continued to receive psychiatric treatment and Dr. Fama, who expressed the more conservative view, thought that the applicant was now capable of adequate reformative management in a community setting and recommended against imprisonment. But he was not prepared to rule out the possibility that the applicant might, in the future, be a danger to the community.

It is unfortunate that the reports requested by this Court were not obtained and sent to it until more than four months after they were requested. It is even more unfortunate that, of the reports obtained, that by the psychiatrist does not address the matters the subject of the request. However that of the Community Correctional Officer does.

It appears from the latter report that, whilst similar programmes are available to the applicant whether he is in prison or not, his progress can be more satisfactorily monitored and supported if he is out of prison. Also, because a requirement that he take part in any such programme can be made a condition of his probation there is a greater incentive to his undergoing and completing any such programme pursuant to a probation order than if he is in prison where his participation would be voluntary.

There are a number of factors which make it undesirable that the applicant should now be sent to prison. He is still very young. His only experience of prison was the month which he served in July last year during which he was sexually assaulted and this has left him with an irrational fear of imprisonment with a high risk of suicide if he is imprisoned. Moreover when seen by Dr. Fong only a few days after the date of sentence his psychiatric symptoms were controlled by medication, he was living with his sister and her husband with whom he had a good relationship and appeared to be committed to continuing treatment; in other words his prospects of rehabilitation, if he remained outside the prison system, appeared to be good. He had constantly expressed deep remorse for his conduct.

As against that the combination of his earlier offence and these offences give some cause for concern that he may again commit an offence of a sexual nature. However because the medical evidence appears to indicate that that possibility is more likely to be reduced by the continuation of his existing situation and treatment than by the imposition of a short term of imprisonment and because of the other factors referred to above we think that the appropriate sentence should be one which does not involve his serving a term of actual imprisonment but which ensures, as long as possible consistently with the need for it, his continued treatment.

We would therefore grant the application, allow the appeal, set aside the sentences imposed below and, in lieu, subject to his consent, in each case order that he be released under the supervision of an authorised Commission officer for a term of three years upon the following conditions:

1.          that he must not commit another offence during the period of the order;

2.          that he must report to an authorized Commission officer at Brisbane within seventy-two hours;

3.          that he must report to and receive visits from an authorized Commission officer as directed by the officer;

4.          that he must notify an authorized Commission officer of every change of place of residence or employment within two business days after the change happens;

5.          that he must not leave or stay out of Queensland without the permission of an authorized Commission officer;

6.          that he must comply with every reasonable direction of an authorized Commission officer;

7.          that he must undergo such medical and psychiatric treatment as may seem appropriate to Dr. Fong the senior medical officer Community Forensic Mental Health Service or such other medical practitioner as may seem appropriate to an authorized Commission officer;

8. that he undertake such drug and alcohol counselling and attend such anger management
or other programme as may be considered appropriate by an authorized Commission
officer.
We would record convictions in each case.

R. v. Smith (1987) 44 S.A.S.R. 587; Jones (1993) 70 A.Crim.R. 449. Evidence of subsequent sentences imposed on co-offenders appears to be an exception to the general proposition; and query Greer v. The Queen referred to in Gavin v. The Queen (1991) 6 W.A.R. 195 at 208.

C.L.R. 188 at 194. See also Acts Interpretation Act 1954 s.20(2)(e), (3); and s.20C(3) which is even more emphatic with respect to amendments which increase penalty.