R v O'SHEA

[2012] SASCFC 92

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v O'SHEA

[2012] SASCFC 92

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Stanley)

1 August 2012

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

Application for permission to appeal - applicant pleaded guilty to seven counts of indecent assault, one count of indecently interfering with a child, three counts of procuring an act of gross indecency, one count of carnal knowledge and one count of buggery - applicant sentenced to imprisonment for two years with a non-parole period of one year - sentencing Judge refused to suspend sentence - application to adduce evidence of harsh treatment in custody and likelihood of parole being granted.

Held:  Application refused - no new evidence in the material sought to be put before the Court.

Application for permission to appeal against refusal to suspend sentence - application based on treatment in custody and applicant's contention it is unlikely he will be released on parole unless he undertakes sexual offenders' program.

Held:  Application refused - offending serious - no arguable miscarriage in exercise of trial Judge's discretion - treatment in custody is the responsibility of Correctional Services - release on parole is a matter for the Parole Board.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Dorning (1981) 27 SASR 481; R v Smith (1987) 44 SASR 587, considered.

R v O'SHEA
[2012] SASCFC 92

Court of Criminal Appeal:       Sulan, Anderson and Stanley JJ

1. SULAN J:             The applicant, Lawrence Edward John O’Shea, seeks permission to appeal against a sentence imposed on 20 December 2011.

2. The applicant pleaded guilty to a number of charges relating to sexual offences against children dating back to the period from 1970 through to 1977.   He had been arrested on 15 November 2005 in respect of three charges for indecent assault and gross indecency.  The police continued inquiries after his arrest and, ultimately, further charges were laid.  The matters progressed through the Magistrates Court.  Eventually, they were transferred to the Supreme Court.  Shortly prior to the date of his trial in respect of a number of the charges, he pleaded guilty.  He subsequently agreed to plead guilty to other charges and ex officio indictments were laid in the Supreme Court and pleas were taken in respect of 14 counts.

3. I summarise those counts.  Counts 1 to 3 are three charges of indecent assault relating to Mr W, who was under 12 years of age and who had attended Camp Sunshine, which was a youth camp run by the applicant.  Those offences occurred in 1970.  Counts 4 and 5 occurred in 1975 and relate to indecent assault upon Ms M, who was seven years old at the time.  Count 6 relates to indecently interfering with Mr S between 1974 and 1976, when he was around nine years of age.  Counts 7, 8, 9 and 10 relate to Ms P, who attended many camps over a period of over a year.  She first attended when she was six years old.  Those offences relate to procuring an act of gross indecency and a charge of indecent assault.  Counts 11 and 12 relate to Ms B, who attended the camp in 1976 when she was seven years old.  The applicant indecently assaulted her.  The further two counts relate to an offence of carnal knowledge with Mr A in 1976, when he was seven years’ old and an act of buggery relating to Mr T in 1975 when he was ten years’ old. 

4. The sentencing Judge related a detailed history about the applicant. I will summarise it shortly. The sentencing Judge imposed one sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988(SA) of two years’ imprisonment, and he fixed a non-parole period of one year.  The Judge considered whether he should suspend the sentence.  He concluded that, in the circumstances, there was not good reason to suspend the sentence.  The applicant’s application for permission to appeal is solely against the Judge’s refusal to suspend the sentence.

5. Without the knowledge of the background relating to the applicant being charged, an objective observer might think that the sentence of two years’ imprisonment with a one year non-parole period is manifestly inadequate for the offences to which he pleaded guilty.  In order to understand why the Judge arrived at that sentence, it is necessary to detail the background leading up to the applicant being charged.

6. The sentencing Judge gave a detailed history of the applicant’s appearances before the Courts since 1960.  In 1960, when the applicant was aged 22, he pleaded guilty to three counts of indecent assault on a young girl under the age of nine.  He received a sentence of two years’ imprisonment.  He was released in February 1962.  He then appeared before Hogarth J charged with indecently assaulting two boys under 11 years of age.  After receiving medical reports, Hogarth J ordered that the applicant be detained for three years in an institution, and then to be released upon a bond for a further five years.  The applicant was detained in Hillcrest Hospital for three years. 

7. After his discharge in 1970, the applicant established a children’s foundation to assist underprivileged children.  The foundation set up a camp known as Camp Sunshine, where it held weekend camps for underprivileged children.  In 1977, the applicant pleaded guilty before Jacobs J to two counts of indecent assault involving a female and a male, both under ten years of age.  He also admitted similar offences against other children of both sexes.

8. The authorities were aware that the applicant’s offending at that time involved other children.  The applicant was then indefinitely detained. Three doctors had examined him and reported that he was unable to control his sexual instincts.

9. Much evidence and public support was given towards the foundation, but it was obvious that the applicant’s involvement also made it possible for him to continue to commit offences against children.

10. The matters upon which Peek J sentenced the applicant, and are the subject of this appeal, were offences committed during the 1970s at Camp Sunshine.  The sentencing Judge noted that if they had been dealt with at the same time as the other offences, the result would have been the same;  that is, the applicant would have been detained for an indeterminate period, only to be released by order of the Governor.  It follows that the applicant now faces imprisonment for offences committed over 30 years ago when, if they had been dealt with at the time, he would not have received a harsher penalty

11. The sentencing Judge in this case had regard to the fact that if the applicant had been sentenced in the 1970s, he would have received a sentence of no more than four years’ imprisonment for the offences, which sentence would have been absorbed into the decision to detain him for an indeterminate period. 

12. In December 1980, the applicant was released on licence.  Over a period between then and 1998, he breached the licence conditions on a number of occasions.  Consequently, he spent some 14 years in custody.  He was subject to licence conditions for approximately 22 years.

13. In 1998, Perry J considered whether to release the applicant from the period of indeterminate imprisonment.  The Judge placed him on a licence for three years.  On 31 August 2001, having completed that period on licence without further breaches of the conditions, the applicant was released from the order of indeterminate detention.  Since that time, he has not offended.

14. The sentencing Judge was therefore faced with having to deal with the applicant for offences which occurred in the 1970s, and having to take into account that the applicant had not offended or breached any conditions of the licence since 1998.  The applicant is now 73 years of age.  The Judge had regard to all these matters when he determined the sentence.  Nevertheless, the sentencing Judge, in considering whether good reason existed to suspend the sentence, concluded that he could find no such reason.

15. As can be observed, the matters with which the sentencing Judge was dealing were matters that occurred some 30 to 35 years ago.  Since that time, the applicant has served many years of imprisonment.  He was finally released in 1998, when he was just under 60 years of age.  Since his release, he has not been convicted of any offences, other than the subject offences. 

    Permission to appeal

16. The application for permission to appeal was heard by a Judge of this Court.  In the course of that application, the applicant sought to rely on an affidavit of his dated 23 March 2012.  The Judge refused to admit the affidavit.  She concluded that there was nothing new in the material that had not been put to the sentencing Judge.  She considered that there was no error demonstrated in the Judge’s exercise of his discretion not to suspend the sentence and she refused permission to appeal.

17. The applicant has now renewed his application to this Court.  He seeks to rely upon his affidavit and seek to tender it as fresh evidence.  Counsel for the DPP submits that the material contained in the affidavit does not amount to fresh evidence, and opposes admission of the affidavit.  She agrees that the Court can read the affidavit for the purpose of considering its admissibility.

18. For the reasons which follow, I would refuse to admit the affidavit.  I would refuse the application for permission to appeal.

    Fresh evidence

19. The applicant seeks to rely upon his affidavit in which he deposes that, after he had been sentenced, he was threatened by a number of prisoners whilst in custody.  He was attacked whilst he was asleep and subjected to further acts of violence.  He claims that he has been required to share a cell with other prisoners who smoke, and that has adversely affected his health. 

20. He was then transferred to Mount Gambier prison.  He has been required to undertake an SBC program and a Centrecare program.  The SBC program relates to sex offenders’ rehabilitation.  The information pamphlet provided to prisoners states:

    Those individuals who either refuse to participate or fail to participate satisfactorily or fail to complete the program satisfactorily will risk having their parole refused by the Parole Board.

21. The applicant contends that he has been subjected to a number of programs over many years.  The reports provided to the Court by psychiatrists indicate that he will not benefit from participation in any further program.  He believes that, if he fails to participate in a program which is of no value to him, then it will affect his application for parole.

22. In R v Dorning, the Court (Walters, Zelling and Wells JJ) observed:[1]

    In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible.

    [1] (1981) 27 SASR 481, 485.

23. The Court of Criminal Appeal will not reject the reception of fresh evidence if it considers that the result of the case would have been different had the evidence been addressed at trial.  If the Court considers that, having regard to the evidence there was a miscarriage of justice, the evidence will be received.

24. Counsel for the DPP submits that it could have been predicted that the applicant would be subject to harsh treatment whilst in custody.  I observe that his counsel submitted to the sentencing Judge that his client had been subjected to violence and abuse in prison before.  He submitted that, because of the harshness of any prison sentence upon the applicant, there was good reason to suspend the sentence.  The applicant’s counsel submitted that the harsh and oppressive conditions already suffered by the applicant would have sent a clear message to the applicant and, therefore, the interests of justice will be served and good reason existed to suspend the sentence.

25. The sentencing Judge was well aware of the applicant’s background.  He was aware of the hardship a custodial sentence would have upon the applicant.  The sentencing Judge had regard to these matters in determining whether good reason existed to suspend the sentence.  There was nothing in the material sought to be placed before this Court that was new evidence.

26. In the circumstances I would therefore reject the affidavit.

    Further observations

27. When he appeared before us, it became evident that the applicant’s complaint substantially relates to his treatment in custody and to his contention that it is unlikely that he will be released on parole unless he undertakes the sexual offenders’ program.

28. Even if the matters contained in the affidavit were admitted, they do not demonstrate that the trial Judge’s discretion miscarried.  The offending was extremely serious.  The sentence was merciful. 

29. The question of the applicant’s treatment in gaol ultimately is a matter for the prison authorities.   As King CJ observed in R v Smith,[2] the health and welfare of prisoners is the ultimate responsibility of the Correctional Services authority.  The prison authorities are required to ensure the safety of prisoners whilst in custody and, in the absence of cogent evidence that it would not be possible to ensure the security or welfare of a prisoner, the Court will be reluctant to interfere with the exercise of the discretion of a sentencing Judge not to suspend a sentence.

    [2] (1987) 44 SASR 587, 589.

30. The question of whether the applicant will be released on parole is a matter for the Parole Board.  There is nothing in the material before the Court to substantiate the submission of the applicant that he will not be granted parole if he does not undertake the sexual offenders’ program. 

31. The applicant was unable to point to any error in the reasoning of the sentencing Judge, nor was he able to point to any new material which would have influenced a change to the decision of the Judge when he concluded that there was not good reason to suspend the sentence.

32. In my view, the grounds of appeal and the arguments put on the appeal did not raise arguable grounds of appeal.  I would refuse permission to appeal.

33. ANDERSON J.     I would refuse permission to appeal for the reasons given by Sulan J.

34. STANLEY J:        I have had the advantage of reading the reasons for judgment of Sulan J.  For the reasons given by his Honour, I too would refuse permission to appeal.