R v Ocean - [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.

This is an application for permission to appeal against sentence.
Introduction
Following a trial in the District Court, the applicant, Ocean, also known as David Robin Douglas and various other aliases, was found guilty by jury verdict of the offence of theft contrary to section 134 of the Criminal Law Consolidation Act 1935 (SA).[1] The applicant was sentenced to a term of imprisonment of four years. A non-parole period of three years was fixed. The sentence was backdated to commence from 9 June 2006, the date on which he was taken into custody.
[1]    (1) A person is guilty of theft if the person deals with property—
(a)      dishonestly; and
(b)      without the owner's consent; and
(c)      intending—
(i)       to deprive the owner permanently of the property; or
(ii)      to make a serious encroachment on the owner's proprietary rights.
Maximum penalty: Imprisonment for 10 years.
(2)A person intends to make a serious encroachment on an owner's proprietary rights if the person intends—
(a)      to treat the property as his or her own to dispose of regardless of the owner's rights; or
(b)to deal with the property in a way that creates a substantial risk (of which the person is aware)
(i)      that the owner will not get it back; or
(ii)      that, when the owner gets it back, its value will be substantially impaired.
The offence related to the yacht “Minuet”. The applicant had experience as a boat builder and sailor. He had undertaken work to effect improvements designed to make the Minuet fit for ocean sailing. The applicant had the permission of the owner, Peter Littledike, to sail the Minuet to test the improvements. However, between 4 and 9 June 2006, the applicant dishonestly dealt with the Minuet without the consent of the owner intending to permanently deprive the owner of his yacht or make a serious encroachment on his proprietary rights. He had painted over the name “Minuet” and a reference to the yacht’s South Australian association, the letters “CYSA”. The value of the Minuet was of the order of $50,000. The applicant sailed from Glenelg across St Vincent’s Gulf and Spencer’s Gulf and then headed in a northwesterly direction adjacent to the entrance of Coffin Bay. At this location the applicant was apprehended.
The applicant was born in 1964 and was aged 41 years at the time of the offending. He has extensive criminal antecedents, including dishonesty offending, extending over a period of more than 20 years. His prior dishonesty offending had led on occasions to orders of imprisonment, generally for terms of two years or less. However, a review of the applicant’s record prior to the present offending discloses only one offence of dishonesty since the late 1990s. That offence related to the receipt of stolen property in 2003 and led to a sentence of 12 months’ imprisonment with a non-parole period of four months.
The learned Judge when sentencing had regard to the personal antecedents of the applicant, which he summarised in the following terms:
I accept, for sentencing purposes, that, as you have indicated, your family’s origins are in the Northern Territory; that you have not had contact with your parents and all but two of your four siblings for the last 17 years; that there has been an unresolved family rift; that you had a very close relationship with your grandmother (now deceased) whose death some eight months ago caused you, as one who was unable to attend her funeral, great distress; that, as a teenager, you were traumatised by a particularly “horrific” incident. Apart from that incident and the other circumstances just referred to, you seem to have had an uneventful childhood and early adult life.
You apparently are in a relationship with a supportive and stable partner when not in custody. During a break from that relationship two years ago, you were victimised by a woman that you were dating.
When in your early 20s, you were married and you became the father of two daughters. You claim to have seven other children from various relationships. At the age of 24 you divorced your wife.
I accept, for sentencing purposes, that, as you have indicated, you were an A-grade student at school, that you have a high level of literacy and numeracy skills. Though having left school at the age of 15 years, you, apart from other qualifications, have academic qualifications in the field of science engineering. You own your own business, and you are a shipwright and boat builder by occupation. You have had a relatively good employment history.
Without the following facts being verified from a source other than yourself, I cannot accept that there is a trust fund in existence from which child support for your children is being paid, or that there is an ongoing relationship and dialogue between yourself and your daughter Jessica.
You have had some injuries and have a number of health problems, but there is no evidence to suggest that any of these things caused or contributed to your offending behaviour. Your health situation can be managed whilst you remain in custody.
I accept, for sentencing purposes, that, as you have stated, you have no history of problem drinking or drug abuse. I find beyond reasonable doubt, on all the evidence at your trial, that, when you commenced to commit the subject offence, you neither had received a phone call nor set sail at that stage nor consumed copious amounts of alcohol, nor took quantities of the medicine Capadex. Your story to that effect and to the effect that you were in a distressed emotional state by virtue of a belief you had that one of your daughters, Jessica, had suicided (in the absence of any support in other evidence) was just that, “a story”; “a false story” and an unsuccessful attempt to justify your actions.
On the hearing before the Court, the applicant submitted that the sentence imposed was manifestly excessive. It was contended that the sentencing Judge erred in law and in fact in taking no account of the applicant’s acceptance from the outset that he had illegally used the “Minuet”. In the course of his police record of interview, the applicant made this concession. He repeated the concession prior to trial when he formally approached the Director of Public Prosecutions to plead to a lesser charge, in circumstances where he continued to acknowledge that he had acted illegally.
The applicant further submitted that the sentencing Judge failed to have adequate regard to the applicant’s mental condition and, in particular, a post-traumatic stress disorder. It was contended that the Judge failed to have regard to the applicant’s responsible attitude evidenced by his arrangement to maintain his children. It was said that these circumstances suggested that the applicant had prospects of rehabilitation that were overlooked by the sentencing Judge. An application was made to receive further evidence to support these submissions and to further adjourn the proceedings to enable records to be subpoenaed from Queensland. It is convenient to immediately address these issues.
An Adjournment
The applicant’s conviction was entered following the jury verdict on 21 November 2007. The applicant was sentenced on 22 January 2008. On the same day, the applicant sought permission to appeal against sentence. At that time the only complaint was that the sentence was manifestly excessive. On 17 March 2008, permission to appeal was refused by a Judge of this Court. On the same day, the applicant requested that the Court of Criminal Appeal determine his application for permission to appeal against sentence. That application was listed for hearing during the April 2008 sittings of the Court of Criminal Appeal, but was adjourned on the applicant’s request for more time. The matter was then listed in the May 2008 sittings of the Court of Criminal Appeal. On 20 April 2008, an application was made to remove the matter from the May 2008 list. This application was granted to the extent that the Court of Criminal Appeal hearing was adjourned for a further 10 days to enable the applicant to obtain the suggested fresh evidence. During the course of submissions on the hearing of the application before this Court, a request was made for a further adjournment. Following submissions, the Court refused the application.
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.
It is to be observed that aspects of the further evidence received by the Court de bene esse relate directly or indirectly to the issues raised in the pre-sentence report. In Sladic,[2] this Court when addressing the receipt of further evidence on appeal, observed:
Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) authorises the Court on appeal to set aside a sentence and re-sentence the accused.[3] In exercising these powers, section 359 permits the Court to receive further evidence on appeal.[4]
...
Fresh evidence may be admitted on an appeal when it sheds new light on the material before the sentencing judge, or when there was a relevant fact or relevant facts in existence at the time of sentencing which had not been brought to the attention of the sentencing judge and a satisfactory explanation has been proffered for the failure to have informed the sentencing judge of the facts.[5]
The forensic psychological report sheds new light on material before the sentencing Judge. In particular, an assessment is provided of the applicant’s mental health. The report appears to address the recommendation of the pre-sentence report. The report confirms the poor cognitive skills of the applicant and his inability to relate his behaviour to its ultimate consequences. Recommendations are made about steps that can be taken to develop the applicant’s cognitive skills. In my view the report should be received without limitation on the hearing of the appeal.
[2]    R v Sladic (2005) 92 SASR 36 at [42], [44].
[3]    Section 353 provides:
(4)Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing;
[4] Section 359 Supplemental Powers of the Full Court.
[5]    R v Penno [2004] SASC 354 at [39] and [42]; R v C (2004) 89 SASR 270; R v Smith (1987) 44 SASR 587 at 588-589; R v Dorning (1981) 27 SASR 481 at 488.
The Appeal
In my view the sentencing Judge adopted too pessimistic a view of the applicant’s prospects for rehabilitation. I consider that there are two clear indicators that the applicant has some prospect of rehabilitation. As earlier observed, the applicant, prior to the present offending, had committed only the one offence of dishonesty since 1998. This was in contrast to his earlier offending which involved many offences over a period of more than 10 years. To put it another way, the applicant appears to have undergone some reform from his mid-thirties.
I also consider it to be relevant that the applicant acknowledged his illegal conduct in taking the yacht from the time he was first apprehended. Although the applicant contested the charge of theft, his acknowledgment of illegal conduct – in offering to plead to a lesser charge – is an indication of an acceptance of a material level of criminal culpability and does evidence some prospect for rehabilitation. In my view the sentencing Judge failed to have regard to these factors when considering the applicant’s prospects for rehabilitation.
There is a further matter. The applicant’s behaviour appears to reflect little connection between his actions and the consequences that are likely to follow. There can have been little prospect of the applicant avoiding detection. He was well known to the owner of the “Minuet”, and to the police. Although equipped for ocean sailing, the “Minuet” was being sailed solo, apparently to Western Australia. Such a voyage would involve a crossing of the Great Australian Bight.
The forensic psychological report confirms that there are prospects for the applicant’s rehabilitation. In the view of the psychologist, there were circumstances in the applicant’s history that would suggest that he was subject to heightened levels of stress and anxiety. It was reported that the applicant’s psychological make-up reflected significant borderline personality features which were likely to exacerbate his poorly developed coping skills. It was recommended that there be an ongoing review of his general mental health and that particular attention be paid to the development of his cognitive skills. This would enable the applicant to be better equipped to assess the relationship between his action and its consequences and thereby reduce the risk of dysfunctional impulsive behaviour.

Having regard to the foregoing, I am of the view that this Court should grant permission to appeal against sentence, allow the appeal and re-sentence the applicant.
When re-sentencing, this Court should have regard to the earlier outlined circumstances of the offending, the personal and criminal antecedents of the applicant, the further evidence received by the Court and the earlier referred to prospects for rehabilitation.
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.
WHITE J : 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
The appellant was 44 years old at the time of the offending. He was educated to Year 12 level and for many years he had worked as a shipwright/boat builder in Sydney. He has also conducted his own business in boat building and boat chartering. His employment history (when he has not been in custody) appears generally to have been good.
The appellant gave a history of post-traumatic stress disorder to the author of the pre-sentence report prepared at the direction of the judge. The pre-sentence report also suggested that the appellant has a limited understanding of the impact of his behaviour on the victims of his offending and that he tended to minimise and justify his offending behaviour. The author of the pre-sentence report considered that the appellant’s offending behaviour indicated a lack of impulse control, poor coping strategies, an inability to regulate emotional responses, and an anti-social world perception.
The appellant has an extensive criminal history with numerous offences of dishonesty over the past 20 years. In the recent past, he was convicted on 16 February 1999 in the Rockhampton District Court of two offences of fraud and one offence of attempted fraud, for which sentences of imprisonment totalling four and a half years were imposed. He was convicted of two further offences of fraud in the Rockhampton District Court on 26 May 2000, but those offences were committed before those for which he was sentenced on 16 February 1999. More recently, the appellant was convicted on 26 June 2003 in the Newcastle Local Court of the offence of receiving stolen property. A sentence of 12 months imprisonment with a four month non-parole period was imposed at that time.
At the time of his arrest, the appellant described himself to the police as a “fraudster”.
The Approach of the Sentencing Judge
The judge was satisfied beyond reasonable doubt that the appellant had taken the Minuet with the intention of depriving the owner permanently of it, and not with the lesser intention of a making a serious encroachment on the owner’s proprietary rights.[7] The judge was also satisfied beyond reasonable doubt that the appellant had “conned” the yacht owner into giving him possession of the yacht; that he had not received a telephone call from the mother of one of his daughters; that he had not been in a distressed and emotional state by virtue of a belief that his daughter (of whose existence he had first learnt approximately six weeks earlier) had committed suicide; that he had not consumed copious quantities of alcohol; and that he was heading to Western Australia. The judge considered the appellant’s claimed belief in his daughter’s suicide to be a story which he had concocted in an attempt to justify his actions. In addition, the judge considered the claim in the appellant’s evidence that when first detected by the police he was in the course of a return journey to Adelaide to have been a lie.
[7] s 134(1) of the CLCA provides:
(1)     A person is guilty of theft if the person deals with property—
(a)     dishonestly; and
(b)     without the owner's consent; and
(c)     intending—
(i)      to deprive the owner permanently of the property; or
(ii)     to make a serious encroachment on the owner's proprietary rights.
The judge said that he did not overlook the issue of rehabilitation. However, he regarded deterrence as an important consideration and considered that there was little scope for leniency.
The Application for the Adjournment of the Appeal Hearing
During the course of the hearing of the application for permission to appeal, the appellant sought an adjournment for the purpose of investigating certain matters further. The Court refused that application and said that it would provide reasons at a later time. I agree with the reasons which Gray J has given for that refusal.
Fresh Evidence
The appellant asked the Court to receive additional evidence in relation to the appeal. The Court received the material de bene esse and said that it would determine its admissibility later.
This Court will permit new evidence to be tendered on an appeal against sentence in only limited circumstances. In R v Dorning[8] it was said that fresh evidence will be received only if it be shown, first, that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that the evidence is such that if given it would probably have an important influence on the result of the case, although it need not be decisive; and, thirdly, that the evidence is apparently credible.[9] The proper purpose of fresh evidence on an appeal against sentence is to bring before the Court facts which were in existence at the time of the imposition of the sentence but which were not known to the sentencing judge, or to explain facts which were before the sentencing judge so as to put them in a new light.[10] The circumstances in which evidence of events occurring after sentence will be admitted on appeal are even more limited.[11] If the Court is satisfied, in accordance with s 353(4)(a) of the CLCA, that a different sentence should have been passed, it may receive fresh evidence for the purposes of determining the sentence which should be substituted.[12]
[8] (1981) 27 SASR 481.
[9] Ibid at 485-6.
[10] R v Smith (1987) 44 SASR 587. See also R v Brain [1999] SASC 358 at [86]; (1999) 74 SASR 92 at 104; R v C [2004] SASC 244 at [14]-[19]; (2004) 89 SASR 270 at 275-6.
[11] R v C [2004] SASC 244 at [14]-[19]; (2004) 89 SASR 270 at 275-6.
[12] R v Sladic [2005] SASC 210 at [42]; (2005) 92 SASR 36 at 45.
The material which was admitted de bene esse comprised three affidavits sworn by the appellant’s solicitor, Mr Mancini, on 29 April, 19 May and 29 May 2008 respectively. The affidavit sworn 29 April 2008 need not be considered in detail. It concerned the application for an adjournment and the appeal against conviction which was then proposed. It does not contain any matter which is material to the present appeal. I would not receive it as fresh evidence.
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.
In my opinion, the appellant was not entitled to credit for his acknowledgement at the time of his arrest of his use of the yacht. He had been caught red-handed. He was alone on the Minuet over 200 kms away from where it should have been. A denial that he had taken the Minuet would have been futile. The “admissions” relied upon were shown by the jury verdict, and the judge’s conclusion, to have been no more than part of the untruthful explanation which the appellant gave in an attempt to justify his conduct. Similarly, the apology did not involve a recognition of the appellant’s culpability. It appears to have been no more than an elaboration of the false account which he gave at the time. Contrary to the appellant’s submission, he did not make any admission of illegal conduct when interviewed following his arrest.
I am satisfied the judge did not err in the way attributed to him in this respect.
The Psychological Evidence
As noted earlier, the appellant reported to the author of the pre-sentence report that he had, in the past, suffered from post-traumatic stress disorder. He told the author that he had, while in custody in Queensland, received psychotherapy for that condition. The appellant did not put before the sentencing judge any expert opinion concerning the post-traumatic stress disorder.
Subsequent to the imposition of sentence, the appellant’s present solicitors obtained a report from a psychologist, Dr White. This Court was asked to receive that report as fresh evidence.
I would decline to receive the report of Dr White. It could have been obtained, with reasonable diligence, for use at the time of sentencing. Further, I am not satisfied that the contents of the report would probably have had an important influence on the outcome of the appeal.
In the first place, in coming to his opinion Dr White appears to have accepted at face value the account of the offending given by the appellant. That account was not accepted by the jury as being accurate, even as a reasonable possiblility, and was also rejected by the judge. Dr White said:
The current assessment indicated that Mr Ocean was [a] person who dealt poorly with stress and had a tendency to decompensate in such circumstances. His psychological make-up reflected significant “borderline personality” features and these likely exacerbated his poor coping skills.
In my opinion, Mr Ocean’s reaction to stress (in response to the news that his daughter had suicided) was consistent with him having a psychological crisis where his behaviour was likely to be dysfunctional.
The opinion expressed in the second paragraph just quoted assumes a state of affairs which is quite inconsistent with the jury verdict and also with the circumstances as found by the judge. The basis of Dr White’s opinion is therefore flawed. That very much diminishes the utility of his opinion in the present case.
Dr White does not, in any event, express an opinion that the appellant does suffer from post-traumatic stress disorder or, for that matter, from any other psychological or psychiatric condition. On the basis of a Personality Assessment Inventory (a standardised self-report questionnaire), Dr White considered that the appellant was “likely to” satisfy the diagnostic criteria for four different disorders listed in the Diagnostic and Statistical Manual of Mental Disorders (4^th Edition). That is not an opinion that the appellant does in fact suffer from any of those conditions and, in any event, it is not clear that responses to a self-reporting questionnaire provide a reliable basis for a psychiatric diagnosis.
Finally, it is evident that Dr White was not provided with a good deal of relevant material. He was not provided with any of the depositions or trial transcript. Nor was Dr White provided with any medical or psychological material relating to the appellant’s history of post-traumatic stress disorder. This too undermines the utility of Dr White’s opinion.
Counsel did not submit that the judge should have sentenced the appellant on the basis that he did in fact suffer from a psychiatric or psychological condition which in some way explained his offending. Instead, it was submitted that Dr White’s report should be received because it pointed to the necessity of further investigation being made before sentence was imposed. Counsel went so far as to submit that it was incumbent upon the sentencing judge, having seen the reference to post-traumatic stress disorder in the pre-sentence report, to himself have sought out further information about the condition. Counsel was unable to cite any authority for that proposition. In my opinion the submission should be rejected.
The sentencing judge did accept that the appellant had a number of health problems but found that there was no evidence to suggest that any of those problems had caused or contributed to his offending. The judge also considered that the appellant’s health could be managed whilst he was in custody.
In my opinion, no error has been shown in this respect.
The Trust Fund for Child Support
The pre-sentence report contained the following information about the appellant discharging his obligations of child support:
The defendant told me that he pays child support for each of his nine children and that child support payments continue while he is incarcerated and are direct debited from a trust fund sent up for the children. Justice Information System case-notes indicate that the defendant is in arrears with his child support payments which casts some doubt on the accuracy of his statement.
The sentencing judge said that in the absence of verification from a source other than the appellant he was not prepared to accept that there was a trust fund in existence from which child support for the appellant’s children was being paid. Nor was he prepared to accept that there was an ongoing relationship between the appellant and the daughter whom he claimed to have believed (erroneously) had suicided.
On appeal, the appellant did not submit that the judge’s view about a trust fund was wrong. He did not seek to demonstrate the existence of a trust fund from which child support payments were being made. Instead, the appellant asked the Court to receive evidence that in each of the four months from February to May 2008 inclusive, $20 had been remitted from his prisoner pay account. It was contended that that sum had been paid on account of child support. Although that part of the submission was not verified independently, I accept that it is to the appellant’s credit that $20 per month from his modest prison allowance is being remitted for the purpose of child support. I would not, however, receive that evidence of the monthly remittances as fresh evidence. It is evidence of events which have occurred since the appellant was sentenced. The principles concerning the reception of evidence on appeal of events which have occurred subsequent to sentencing do not permit its admission.[13]
[13] R v C [2004] SASC 244; (2004) 89 SASR 270.

The appellant submitted that the judge had erred in rejecting his submissions about the trust account and about his relationship with his daughter without first providing him with an opportunity to present evidence on those topics. Reference was made to R v Perre[14] and to R v Lobban.[15] The appellant also referred to s 8(6) of the Criminal Law (Sentencing) Act 1988 (SA) which provides:
(6)Where a statement of fact or opinion in a pre-sentence report is challenged by the prosecutor or the defendant, the court must disregard the fact or opinion unless it is substantiated on oath.
Section 8(6) has the effect that a fact or opinion expressed in a pre-sentence report which is challenged should be disregarded unless it is substantiated on oath. It does not have the converse effect, as the appellant’s submissions seemed to imply, that any fact or opinion stated in a pre-sentence report must, in the absence of any challenge, be accepted.
In my opinion, the appellant was sufficiently on notice that he should provide confirmatory evidence of any fact upon which he relied in mitigation. During the course of the sentencing submissions, the prosecutor submitted that the judge should reject any factual matter stated in the pre-sentence report which was not corroborated in some way. The author of the pre-sentence report also expressed reservations about the appellant’s honesty and reliability.
It is noted in Departmental records and reports that the defendant is known to be dishonest in representing the truth.
…
It is the impression of the writer that the defendant minimises and justifies his offending behaviour and possibly embellishes his personal history.
[14] (1986) 41 SASR 105.
[15] [2001] SASC 392; (2001) 80 SASR 550.
Finally, the very nature of the offending, and the rejection by the jury of the appellant’s explanation, would have indicated to the appellant and his counsel that his credibility was in issue. In these circumstances, neither could have assumed that claims of matters said to be mitigatory would be accepted without some independent verification.
The sentencing judge has not been shown to have erred in this respect.
Was the Sentence Excessive?
In my opinion, a sentence of four years imprisonment in the circumstances of this case is severe. However, this Court should only interfere with the sentence if it considers that the sentence of four years was outside a reasonable range of sentencing discretion.
In Lowndes v The Queen,[16] the High Court said:
The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[17] (Citations omitted)
[16] [1999] HCA 29; (1999) 195 CLR 665.
[17] Ibid at [15]; 671-2.
In my opinion, the sentence in this case cannot be characterised as so severe that this Court should intervene. The offending was pre-meditated, as evidenced by the nature and extent of the planning of the appellant prior to taking the Minuet. The Minuet was valuable. Estimates of its value varied but it seems to have been worth at least $45,000 and possibly up to $60,000. The theft involved a deception of the Minuet’s owner and a breach of his trust. The appellant’s conduct required an extensive police search on land, sea and air with a considerable commitment of police resources. The appellant’s criminal history indicates that deterrence was an important feature in the sentencing. The appellant has not at any stage expressed remorse or contrition or accepted the wrongfulness of his conduct. Indeed, as the report of Dr White shows, the appellant continues to maintain his untruthful account of his conduct. The sentencing judge had the advantage denied to this Court of observing the appellant during the course of the trial and, in particular, while he gave evidence. He did not overlook the issue of the appellant’s rehabilitation.
In my opinion, the sentence of four years, while high, is not so high that this Court should intervene.
Conclusion
I would refuse permission to appeal.
DAVID J: I would allow the appeal for the reasons given by Gray J. I agree with the orders he proposes.