R v Ocean

Case [2008] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v OCEAN

[2008] SASC 178

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice David)

4 July 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE

Application for permission to appeal and appeal against sentence – appellant found guilty by jury verdict of theft of yacht (section 134 Criminal Law Consolidation Act 1935 (SA)) – appellant sentenced to term of imprisonment (4-year head sentence; 3-year non-parole period) –appellant complained that sentence was manifestly excessive – appellant further complained that sentencing judge failed to have adequate regard to appellant’s mental condition and prospects for rehabilitation – at the hearing of appeal, court received de bene esse three affidavits from appellant’s solicitor exhibiting fresh evidence consisting of correspondence relating to an attempted plea bargain, a forensic psychological report and evidence of child maintenance – an application by the appellant for an adjournment to obtain further evidence was refused – whether further evidence admissible – whether sentence manifestly excessive – whether sentencing judge failed to have adequate regard to appellant’s mental condition and prospects for rehabilitation.

Held (per Gray J, David J agreeing):  permission to appeal granted – appeal allowed – correspondence relating to attempted plea bargain and forensic psychological report are relevant and should be received without limitation on the appeal – evidence of child maintenance is of little or no relevance and should not be received – appellant has some  prospect for rehabilitation – sentence manifestly excessive in light of appellant’s prospects for rehabilitation – appellant re-sentenced to term of imprisonment of three years with a two-year non-parole period.

(per White J dissenting):  permission to appeal refused – evidence received de bene esse should not be received as fresh evidence on appeal – sentence was not outside a reasonable range of sentencing discretion.

Criminal Law Consolidation Act 1935 (SA) s 134, s 353(4)(a) and s 359; Criminal Law (Sentencing) Act 1988 (SA) s 8(6); Summary Offences Act 1953 (SA) s 46, referred to.
Lowndes v The Queen (1999) 195 CLR 665; R v Brain (1999) 74 SASR 92; R v C (2004) 89 SASR 270; R v Dorning (1981) 27 SASR 481; R v Lobban (2001) 80 SASR 550; R v Penno (2004) 236 LSJS 457; R v Perre (1986) 41 SASR 105; R v Sladic (2005) 92 SASR 36; R v Smith (1987) 44 SASR 587, considered.

R v OCEAN
[2008] SASC 178

Court of Criminal Appeal         Gray, White and David JJ

GRAY J.

  1. This is an application for permission to appeal against sentence. 

    Introduction

  2. Following a trial in the District Court, the applicant, Ocean, also known as…

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R v Ocean [2008] SASC 178
Case
[2008] SASC 178
Decision Date

CaseChat Overview and Summary

The case of R v Ocean involved an appeal against the sentence imposed by the District Court of South Australia. The appellant was found guilty of the theft of a yacht named "Minuet" and was sentenced to a term of imprisonment of four years with a non-parole period of three years. The appellant sought permission to appeal against the sentence, arguing that it was manifestly excessive and that the sentencing judge had failed to consider his mental condition and prospects for rehabilitation. The primary legal issues were whether the fresh evidence presented was admissible, whether the sentence was manifestly excessive, and whether the sentencing judge had failed to consider the appellant's mental condition and rehabilitation prospects.

The court received three affidavits from the appellant's solicitor, presenting fresh evidence such as correspondence relating to an attempted plea bargain, a forensic psychological report, and evidence of child maintenance. The court held that the correspondence and the psychological report were relevant and should be considered on appeal, while the evidence of child maintenance was of little or no relevance. The court found that the appellant had some prospect for rehabilitation and that the sentence was manifestly excessive given these prospects. The court granted permission to appeal, allowed the appeal, and re-sentenced the appellant to a term of imprisonment of three years with a non-parole period of two years. This sentence was backdated to the date of the appellant's initial custody.

In conclusion, the court granted permission to appeal and allowed the appeal, finding the sentence manifestly excessive and the appellant's prospects for rehabilitation. The court re-sentenced the appellant, providing a more appropriate term of imprisonment considering the evidence and arguments presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There is a need for finality. It is to be noted that more than four months have passed since sentencing. There has been ample time for follow up inquiries. The applicant has had ample opportunity to obtain and present evidence to the Court including two postponements of the application to this Court. The only aspect of the inquiry yet to be completed related to the obtaining of information about the stabbing injury and its suggested consequences. This incident was said to have taken place more than a decade ago and its relationship to the sentencing of the applicant appears at best to have only an indirect and remote relevance. In these circumstances the application for a further adjournment was refused. Further Evidence At the hearing of the application for permission, this Court received de bene esse three affidavits from the applicant’s solicitor exhibiting the proposed further evidence. This evidence consisted of correspondence relating to an attempted plea bargain, a forensic psychological report, and evidence of the payment of child maintenance. The affidavits made reference to attempts to obtain information from Queensland concerning a stabbing injury sustained by the applicant while in prison and a claimed consequential post-traumatic stress disorder. I consider the documents relating to the payment of child maintenance to be of little or no relevance. As far as the traumatic stress disorder is concerned, in my view that topic is adequately addressed in the forensic psychological report. The Director of Public Prosecutions acknowledged that the letter from the applicant’s solicitor seeking to negotiate a plea to a lesser charge was not drawn to the Judge’s attention. It was acknowledged that counsel for the parties were not aware of the existence of the letter. It was agreed that the letter should be received if it was relevant to the sentencing of the applicant. As discussed later in these reasons, I do consider the offer to have relevance. It confirmed the applicant’s acknowledgment from the outset of the illegality of his conduct in the taking of the “Minuet”. The acknowledgment of some criminal culpability may be viewed as the first step in the process of rehabilitation. Following the applicant’s conviction the sentencing Judge ordered a pre-sentence report. When outlining the applicant’s antecedents, the Judge drew heavily on the contents of this report. He made express reference to the report in the following terms:I do not hold it against you that the report-writer’s analysis of your offence and your offence-related behaviour is not very favourable to you. It is simply that there is little in those sections of the pre-sentence report marked ‘analysis of offence’, ‘criminogenic needs’ and ‘indicators of defendant’s responsiveness’ that I can use in your favour, that is to say, use to mitigate your punishment, other than to note that a number of recommendations are made, some of which may benefit you and, hopefully, will benefit you. There are simply no grounds for leniency.In the course of the pre-sentence report the authors, a social worker and a contract report writer, on several occasions made reference to the applicant having little understanding of the consequences of his behaviour. Reference was made to an indication of a lack of impulse control, poor coping strategies and an inability to regulate emotional responses. Under the heading of “Criminogenic needs” a recommendation was made that the applicant’s mental health should be assessed. Later in the report reference was made to psychiatric assessment and treatment. In the course of his sentencing remarks, the Judge made no specific reference to such assessments, the possibility of treatment or to any prospects for rehabilitation.

Decision

Reasons for decision

GRAY J WHITE J
Having regard to the circumstances of the offending and the applicant’s antecedents, the offending called for an immediate term of imprisonment of three years. I would fix a non-parole period of two years. Conclusion I would grant permission to appeal and allow the appeal. I would set aside the sentence imposed by the District Court. I would re-sentence the applicant to a term of imprisonment of three years. I would fix a non-parole period of two years. The sentence should be backdated to 9 June 2006, the date on which the applicant was first taken into custody. : A jury found the appellant guilty of the theft[6] of an ocean going yacht called “Minuet”. The appellant was then sentenced to imprisonment for four years with a non-parole period of three years.[6] Criminal Law Consolidation Act 1935 (SA) s 134. The appellant seeks the permission of this Court to appeal against his sentence, that permission having been refused by a single judge. The principal ground of the proposed appeal is that the sentence is manifestly excessive, but the amended grounds of appeal also raise some specific grounds of complaint. As is the practice, this Court heard the application as though it was the appeal itself.Circumstances of the Offending The appellant has experience in sailing boats as well as experience in boat building. In April and May 2006 he befriended the owner of the Minuet, which was moored at Wirrina. He carried out some repairs and improvements to the Minuet. Some of these were authorised by the owner and some were not. It was agreed that the appellant could sail the Minuet to Garden Island in order to carry out further repairs. On the way to Garden Island, he stopped for a short time at Glenelg. At about 6.00 am on Monday, 5 June 2006 the appellant left Glenelg with the stated intention of completing the journey to Garden Island. When the Minuet was next seen it was sailing under full sail in a north-westerly direction about two nautical miles off the Whidbey Islands, ie, west of Port Lincoln. That observation was made at 2.00 pm on Thursday, 8 June 2006 and was the culmination of an extensive police search. After aerial surveillance, a police launch intercepted the Minuet and towed it to Port Lincoln where the appellant was arrested. In his evidence at the trial, the appellant said that shortly after leaving Glenelg (and while still travelling in an approximately westerly direction to deeper water) he had received a telephone call from the mother of one of his daughters. He said that he had been told of his daughter’s suicide. This distressed him. He had then activated the Minuets’ autohelm and consumed a large amount of alcohol. This was in addition to painkillers which he had taken for a wrist injury. The Minuet had then travelled (whether by sail or motor was not made clear) under the control of the autohelm until shortly before it was located by the police just over four days later. The verdict indicates that the jury rejected the appellant’s account. There were a number of features indicating its implausibility. These included the sheer improbability of the Minuet being able to make its way from Glenelg to a position off the Whidbey Islands while under autohelm; the fact that the name Minuet on the yacht’s stern had been painted over in an apparent attempt at disguise; the mother’s denial of making the telephone call attributed to her (and the daughter having not, in any event, suicided); markings on charts located in the cabin of the Minuet consistent with a deliberate course having been plotted by the appellant; the alcohol which the owner had left on board being intact; and the appellant having taken steps after leaving Glenelg to alter his own appearance by shaving off his beard.The Appellant’s Personal Circumstances

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, WHITE J

The reception of the affidavits sworn on 19 and 29 May 2008 is most conveniently considered in relation to the specific issues raised on appeal.The Claim of Cooperation and Contrition The sentencing judge said that he did not make any allowance in the appellant’s favour on account of remorse or contrition, or for pre-trial cooperation with the investigating or prosecuting authorities, because he considered that there had been none. He also said that he did not give the appellant any credit for the responsibility which his then counsel submitted he had accepted for the “moral wrong” in what he had done. The appellant submitted that the judge had erred in each of these respects. It was said that the appellant’s participation in an interview with the police at the time of his arrest was an indication of his cooperation. In the oral submissions it was also said that the appellant had acknowledged his unlawful use of the Minuet at the time of his arrest. It was said that the appellant’s acceptance of responsibility and contrition was evidenced by a letter sent by his former solicitors to the Director of Public Prosecutions (DPP) on 14 January 2007. After the Minuet had been towed by the police into Port Lincoln, the appellant was arrested and interviewed. He admitted taking the Minuet. He gave an account of the circumstances in which he took the Minuet which was very similar to that which he gave at trial, ie, receiving distressing news, activating the autohelm, and then drinking excessively while the Minuet travelled under the control of the autohelm on its pre-set course. In the course of the interview the appellant expressed an apology for what had occurred. The Court was asked to receive as fresh evidence the letter dated 14 January 2007 sent to the DPP. The letter indicated that the appellant “may be prepared” to resolve the prosecution against him by pleading guilty to the offence of unlawfully interfering with a boat, contrary to s 46 of the Summary Offences Act 1953 (SA), but maintained that the appellant’s conduct had occurred in the circumstances outlined earlier. The DPP rejected that proposal for the resolution of the matter. In my opinion, the letter of 14 January 2007 should not be received as fresh evidence. It was available to be tendered at trial. No explanation was provided for it not having been tendered at that time. Counsel did tell the judge during the course of sentencing submissions of the appellant’s willingness pre-trial to plead to the offence of illegal use of the Minuet. In any event, the letter of 14 January 2007 did not contain any expression of remorse, sorrow or contrition for what the appellant had done. It bears all the hallmarks of an attempt by the appellant to have the DPP agree to a course of action which would result in him being sentenced for an offence for which the maximum sentence was imprisonment for one year rather than the maximum of 10 years which is applicable to the offence of theft. In my opinion, it cannot reasonably be construed as a statement of contrition or of willingness to cooperate with the prosecution. The letter repeated (on the instructions then given by the appellant) the untruths which he had told when first interviewed by the police. Its effect was to diminish, rather than to acknowledge, his culpability and responsibility. Whether or not there may be cases in which a willingness pre-trial to plead guilty to an alternative offence may be evidence of contrition or cooperation need not now be considered. The present case is not one of that kind.