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

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

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 O'SHEA

Details

AGLC: R v O'Shea [2012] SASCFC 92
Case: [2012] SASCFC 92
Decision Date: 1 August 2012

CaseChat Overview and Summary

In *R v O'Shea*, the applicant sought permission to appeal against a sentence imposed by a lower court. The applicant also sought to adduce fresh evidence by way of affidavit, detailing alleged threats, violence, and adverse health impacts experienced while in custody following his sentencing. He further contended that mandatory participation in rehabilitation programs, such as the SBC program, despite psychiatric reports indicating he would not benefit, could negatively affect his parole prospects.

The central legal issue before the Court of Criminal Appeal was whether the applicant's affidavit constituted admissible fresh evidence that would likely influence the outcome of the appeal. This required the court to consider the established criteria for admitting fresh evidence on appeal, namely that the evidence could not have been obtained with reasonable diligence for use at trial, that it would probably have an important influence on the result, and that it must be apparently credible. The court also had to determine if the reception of such evidence would demonstrate a miscarriage of justice.

The court reasoned that the applicant's counsel had previously informed the sentencing judge of the applicant's history of violence and abuse in prison, and had argued for a suspended sentence on the grounds of the harshness of a custodial sentence. The sentencing judge was therefore aware of the potential hardship and the applicant's background. The court found that the matters raised in the applicant's affidavit were not new evidence, as the sentencing judge had already been apprised of the applicant's difficult circumstances and had taken them into account when deciding whether to suspend the sentence. Consequently, the court concluded that the affidavit did not contain evidence that could not have been obtained with reasonable diligence for the trial, nor did it demonstrate that the result of the case would have been different had the evidence been presented at trial.

The court refused to admit the affidavit and refused the application for permission to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

ANDERSON J

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Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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