R v Penno - [2004] SASC 354

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PENNO
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)
12 November 2004
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING - WHEN ADMISSIBLE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appeal against sentence - appellant convicted by jury of possessing methylamphetamine for sale- appellant sentenced to six years imprisonment with a non parole period of three years - sentence appealed on grounds that sentence imposed was manifestly excessive and should have been suspended - appellant sought to tender further evidence not available at trial of effect of sentence on appellant's dependant children - evidence disclosed the appellant's partner's health had deteriorated since sentence and at time of appeal was unable to care for the dependent children - consideration of admitting further evidence on appeal - consideration of impact of custodial sentence on dependants - further evidence discloses significant hardship to be suffered by the appellant's dependant children arising from their mother's serious mental illness - merciful approach to sentencing warranted - appeal allowed for limited purpose of fixing new non parole period - non parole period of 21 months fixed.
Mental Health Act 1993 (SA); Criminal Law (Consolidation) Act 1935 (SA) s 353; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n), referred to.
R v Smith (1987) 44 SASR 587; R v C [2004] SASC 244; R v Brain (1999) 74 SASR 92; R v Wirth (1976) 14 SASR 291; R v Carpentieri (2001) 81 SASR 164; R v Adami ( 1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60; Bates v Police ( (1997) 70 SASR 66; Neill v Police [1999] SASC 270; Walsh & Anor v Department of Social Security (1996) 67 SASR 143; R v Amuso (1987) 138 LSJS 53; Cobiac v Liddy (1969) 119 CLR 257; R v Miceli [1998] 4 VR 588; R v Osenkowski (1982) 30 SASR 212; R v Carter (1997) 91 A Crim R 222; R v Clarke [1996] 2 VR 520; R v Lowery (1992) 14 Cr App R 485, considered.

R v PENNO
[2004] SASC 354
Court of Criminal Appeal: Perry, Nyland and Gray JJ

PERRY J. I have had the benefit of an opportunity to peruse the reasons for judgment of Gray J.
This Court emphasised in R v C[1] that it is only in very limited circumstances in an appeal against sentence that regard may be made to events occurring after the sentence was pronounced.
[1] [2004] SASC 244
The relevant authorities are canvassed by Doyle CJ, with whom White J agreed, in R v C. Doyle CJ expressed his conclusion in the following terms:
“31 That survey of the case law indicates that usually evidence of events occurring after sentence is passed is incapable of demonstrating an error by the sentencing judge that would enliven the power to set aside a sentence as erroneous, in exercise of the power conferred by s 353(4) of the CLCA. However, such evidence may establish that a matter that the sentencing court treated as material is now to be seen in a new light, or has a new significance, as a result of events occurring after sentence that were not anticipated and, usually, could not reasonably have been anticipated. In such cases, because the evidence of matters occurring after the passing of sentence will throw new and significant light on a matter relied on by the sentencing court, the evidence will be admitted and can be acted on. For present purposes it is not necessary to decide whether, in a case in which evidence of facts occurring after sentence is admitted, the court must be satisfied in the light of that evidence that the sentence passed can be said to be erroneous, or whether, having admitted the evidence, the court simply reconsiders the sentence in the light of all the circumstances including the further information: see Brain at [92]–[93] Doyle CJ.
32If the evidence of matters occurring after sentence is merely evidence of a new fact or event, not bearing upon a matter that was material at the time of sentence, and being significant only because it would be material were sentence to be passed at the time of appeal on the basis of all material then available, the evidence will not be admitted, or if admitted will not provide a basis for interference on appeal.”
In this case, as explained by Gray J, the appellant contends that evidence of the deterioration in the health of the appellant’s partner, Ms Eren, after the sentence was pronounced, sheds new light on material which was taken into account by the sentencing judge.
Ordinarily, deterioration in the health of a dependant occurring after sentence was pronounced, would not justify interference with the sentence, even if the state of health of the dependant was adverted to by the sentencing judge.
In this case, however, because of the deterioration in her health, Ms Eren has ceased to be able to look after the appellant’s two children, who are being looked after by their grandmother. The adverse effect which this is having on the welfare of the children is highlighted in the evidence tendered in support of the appeal.
But this development standing alone, would not justify interference with the sentence, unless at the time of sentencing the judge proceeded on the basis that the children would be looked after by their mother.
No finding or assumption to that effect is expressly adverted to in his sentencing remarks, but this was a matter which was indirectly mentioned during the course of sentencing submissions by counsel.
In the course of his submissions to the sentencing judge on behalf of the appellant, Mr Braithwaite said that the appellant had responsibility for “three girls”, “three young children”, and that if he was imprisoned, “and she [Ms Eren] has to look after the business as well as the children”, she would have to give up employment at an hotel.
Mr Braithwaite also made several references to Ms Eren’s poor state of health.
In the circumstances, I think it proper to conclude that the sentencing of the appellant proceeded on the assumption that the children would be cared for by the appellant’s wife.
That events have proved otherwise, and the fact that the psychological well-being of the children is now being adversely affected beyond what would ordinarily have occurred by reason of the incarceration of their father, in the particular circumstances of the case, provides sufficient justification for a reconsideration of the sentence by this Court.
That does not necessarily mean that the sentence should be varied. That consequence would only be justified if the sentencing judge would have been led to impose a lighter sentence, had he known what was to transpire.
Not without some hesitation, I have reached the view that in the circumstances, interference in the sentence under appeal is justified.
But I would emphasise the unusual circumstances of the case. I repeat my earlier observation that a deterioration in the health of a dependant occurring after sentence is pronounced, would not normally justify interference on appeal.
I agree with the order proposed by Gray J.
NYLAND J: I agree that the appeal should be allowed for the reasons expressed by Gray J. I agree with the sentence proposed by him.
GRAY J
Introduction
This is an appeal against sentence.
The appellant, Mark John Penno, was convicted by jury verdict of possessing methylamphetamine for sale. He was sentenced to six years imprisonment. A non-parole period of three years was fixed.
The sentencing judge considered the seriousness of the offending. The amount of methyl amphetamine involved was substantial – 5.22grams of pure methylamphetamine. The appellant was also found to be in possession of a cutting agent, numerous small money bags, scales and $1,450 in cash.
The sentencing judge described the offending behaviour as follows:
I find that you have been involved in an ongoing commercial operation involving the purchase and resale of methylamphetamine. I am unable to say precisely how long it was that you were so involved. It was not a short period but, at the same time, it was not an extended period of years. I find that your involvement was of the order of months. I am not able to find on balance that, at the time of your arrest by the police, you were in the process of selling less and scaling down your involvement in the sale of this drug.
Although I cannot say that your offending is to be place towards the upper end of the scale for offences of this type, neither can I say it is towards the bottom. I find that your offending, in the scale of offences of this type, is in the mid-range.
The appellant and his de-facto partner, Melek Eren, have two children aged four and six years. Ms Eren also has an 11 year old daughter. Prior to his imprisonment, the family lived together.
At the time of sentencing, it was submitted that Ms Eren would take care of the children and the appellant’s vending machine business.
When sentencing the judge took into account the appellant’s personal circumstances. In particular, the judge referred to the appellant’s relationship with his partner:
You have been in a relationship with a lady for many years. That lady had a child from a previous relationship and the two of you have two children. That relationship has had some difficult times, partly due to the cultural differences between you and your partner’s family, and also because your partner lost a child early in your relationship with her and she suffers from depression and other illnesses. You plan to marry her when you are in a position to do so and, to your credit, you want to work towards giving all of those children a good education.
The appellant’s history of prior offending, including prior dishonesty offences, was noted. The sentencing judge described the appellant’s prospects for rehabilitation as ‘good’, but took the view that having regard to the serious nature of the offending, it was not appropriate to suspend the sentence of imprisonment he intended to impose.
Issues on Appeal
Counsel for the appellant submitted that the sentence imposed was manifestly excessive and in the circumstances, should have been suspended.
Although the sentencing judge in his remarks mentioned the appellant’s good prospects for rehabilitation, counsel submitted that the judge did not give adequate consideration to this aspect when imposing the sentence of imprisonment. It was said that insufficient weight was given to the appellant’s relationship and personal circumstances. It was argued that the sentencing judge did not give sufficient consideration to the effect such a sentence would have on the appellant’s dependents.
The appellant sought to tender further evidence suggesting that Ms Eren is not fit to take care of the children or the business. Counsel relied on an affidavit of Sandra Penno, the appellant’s mother. That affidavit disclosed that after the appellant commenced his sentence, Ms Eren had been admitted to hospital on several occasions and was unable to care for the children:
Since [the appellant’s] incarceration [Ms Eren’s] mental health has deteriorated significantly. She is constantly vague and she seems detached from real life.
Since [the appellant’s] incarceration [Ms Eren] has attempted suicide on 4 different occasions. Prior to [the appellant’s] incarceration there had never been any suicide attempts.
Since I have been looking after the children they are constantly asking when Mum and Dad will be home and when they will be able to live together in their house. The children have now been saying that nobody wants them and nobody loves them.
Even when the children go to school they tell their teachers and other children at school that nobody loves them and nobody wants them.
…
At times It feels like I can’t cope with the situation however I don’t want the children to go into foster care. On some occasions I have contacted the Parent Helpline just to talk to someone about my situation. At times it sometimes has got all on top of me and been too much and I have tried to get some help from Mental Health Services but there is no help out there at the moment.
The appellant’s parents have cared for the children since February 2004. At the time of the hearing of the appeal Ms Eren was detained in hospital under the Mental Health Act 1993 (SA) following several suicide attempts.
Counsel for the appellant sought to have Mrs Penno’s affidavit received as further evidence relevant to the present appeal. It was submitted that the worsening condition of the appellant’s partner and her inability to care for their children were relevant considerations. It was said that this is such an extreme or exceptional case as to warrant intervention by the court to suspend the sentence of imprisonment.
Counsel for the appellant also relied on a psychological report of Dr Davis in relation to the appellant’s children and the effect of the appellant’s imprisonment on their psychological and emotional wellbeing. Dr Davis’ report provided a detailed analysis of the children’s psychological and emotional health. She concluded:
Their father’s incarceration, began a chain of events for the three girls wherein they lost their father, lost their mother, their house and possessions and for [the two older girls] they also changed schools. These stressors would have taxed the resilience of any child. There is some evidence however that these children were already vulnerable in that they had already experienced disrupted family lives as their parents moved in and out of a relationship with each other and their mother experienced bouts of clinical depression.
…
Because of the effective emotional loss of both their parents, [the children] will require a level of consistency of parenting over and above that required by most other children. They will require a stability of home and educational environment and consistent, safe and supportive discipline at a level, beyond that required by other children, to enable them to stabilise emotionally, interact appropriately, and forge appropriate relationships with others.
…
In addition, it is vital that the girls continue to see their father on a weekly basis. They need to know that he loves them and cares about them and he is always there when they visit. At least they can remain then certain of this part of their relationship. It would be of concern for the girls’ emotional wellbeing, if [the appellant] was moved to a location wherein it was not possible for the girls to visit with the current level of frequency.
Counsel for the appellant also sought to tender a report of Dr Campbell of the Modbury Hospital dated 29 July 2004. Dr Campbell’s report concerned Ms Eren’s mental health. He observed:
[Ms Eren] was an impatient at Woodleigh House from 28/3/2004 to 28/4/2004. Consultant opinion was that her presentation was consistent with a diagnosis of Adjustment Disorder with predominantly depressed mood. Ms Eren presented voluntarily for assistance with worsening low mood and suicidal ideation. She reported escalating social stressors since her partner, [the appellant], went to jail earlier in the year. …. She described a 2 month period of depressed mood, anhedonia, initial and middle insomnia, poor appetite, poor memory, low energy and worsening suicidal ideation to the point of contemplating jumping off a cliff. There were no psychotic features.
… I reviewed [Ms Eren] in Outpatients on 21/5/2004 and found that her mood had been relatively stable although she reported mild deterioration of her mood in the few days preceding this. She reported compliance with her medications of Sertraline and Phenytoin. She did not attend a follow up appointment on 17/6/2004 so I am unable to comment on the current status of her mental health. Her prognosis in the long term will depend largely on compliance with medications and the presence and management of psycho-social stressors such as the care of her children and issues relation to personal relationships, accommodation, finance, work and health.
Counsel for the appellant submitted that evidence concerning the mental condition of the appellant’s de-facto partner was before the court at the time of sentencing. It was said that submissions were put to the sentencing judge about Ms Eren’s ability to care for the appellant’s dependant children, albeit in a limited way as it was not known at that time that there was likely to be any profound deterioration in her condition.
Counsel submitted that the further material sought to be tendered shed light on an existing fact known to the court at the time of sentencing. It was pointed out that the sentencing judge noted that Ms Eren suffered from ‘depression and other illnesses’ in his remarks. The sentencing judge proceeded on the basis that Ms Eren was capable of looking after the children. This was not correct as the further evidence demonstrated.
Counsel for the Crown accepted that at least part of the further material provided to the court could properly be received as evidence on this appeal and did not oppose the court receiving the affidavit and medical evidence for the purpose of considering the effect of Ms Eren’s mental illness on the appellant’s dependant children. Counsel submitted that the court ought not to take into account the material suggesting that the appellant’s parents were no longer able to cope with the care of the children. It was contended that notwithstanding the further evidence, given the gravity of the offending, a suspended sentence was inappropriate.
Consideration of the Issues on Appeal
Pursuant to section 353 of the Criminal Law Consolidation Act 1935 (SA), this Court has the power to set aside a sentence on appeal and to re-sentence the offender. Section 353(4) provides:
Subject to subsection (5), on an appeal against sentence, the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and in any other case shall dismiss the appeal.
In the exercise of its powers under section 353(4), the court has power to admit evidence on the hearing of the appeal. This power is contained in section 359 of the Act, which relevantly provides:
For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice—
(a)     …
(b)order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Supreme Court or before any officer of the Supreme Court or justice of the peace or other person appointed by the Full Court for the purpose, and allow the admission of any depositions so taken as evidence before the Full Court; and
(c)receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with such consent; and
(d)     …
(e)     …
(f)exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters; and ….

However, it is well established that the power to receive further evidence on appeal must be exercised with caution.[2] The receipt of further evidence on the hearing of an appeal against sentence has recently been considered by this Court in R v C.[3] In that case, Doyle CJ with whom White J agreed held that evidence of events occurring after sentence is incapable of demonstrating appealable error unless it sheds new light on material before the judge at the time of sentencing.
[2] For example see R v Smith (1987) 44 SASR 587; R v C [2004] SASC 244
[3] [2004] SASC 244
In R v C the court referred with approval to the following observations of King CJ in R v Smith:[4]
The task of the Court of Criminal Appeal, speaking generally, is to see whether the trial judge went wrong on the material before him: R v Dorning (1981) 27 SASR 481 at 488. There is power to receive fresh evidence subject to certain conditions which are summarised in Dorning’s case at 485. 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 sentence but 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. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O’Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.
While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant’s condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence.
[4] (1987) 44 SASR 587 at 588
These observations were also approved by Doyle CJ in R v Brain:[5]
On the psychiatric evidence now before the Court, it is apparent that had Mr Brain’s condition been fully investigated at the time he was sentenced, the Court would have been informed that he was suffering from a fairly long standing depressive disorder.
The evidence to which I have just referred relates to Mr Brain’s mental state and state of health at the time when he was sentenced. On an appeal against sentence, the Court may receive fresh evidence if that evidence puts before the Court facts which existed when the sentence was passed, but were not known to the sentencing judge: R v Smith (1987) 44 SASR 587 at 588 King CJ. That being so, the fresh evidence is evidence that the Court can receive. As the Director of Public Prosecutions did not oppose its admission, it is not necessary for the Court to consider whether there is an adequate explanation for the failure to put the material before the District Court in 1990.
[5] (1999) 74 SASR 92 at 104
In the present appeal, the further evidence adduced by the appellant should be received. The evidence sheds light on material before the sentencing judge. At the time of sentencing, the judge was aware that Ms Eren was suffering from some degree of mental illness. The further medical and affidavit evidence describes a deterioration in her condition and provides evidence of the seriousness of her mental illness. The evidence also provides information in respect of the impact of Ms Eren’s mental health and the appellant’s imprisonment on the emotional well being of their dependant children. These matters are material and were not before the sentencing judge.
In the circumstances, the appeal should be allowed. This is not a case of identifiable error on the part of the sentencing judge. The sentence imposed was appropriate on the material then before the court. However, the further evidence demonstrates that the appellant’s partner’s mental illness was more serious than had been thought. It is appropriate that the appellant be re-sentenced.
Re-Sentencing
The gravity of the appellant’s offending called for the imposition of a significant head sentence of imprisonment. the head sentence imposed by the sentencing judge of six years imprisonment was appropriate. However, the further evidence allows the court to adopt a merciful approach when fixing a non parole period.
Impact of Custodial Sentence on Dependants
It is well established that in certain circumstances, a court may to take into account the impact of a custodial sentence on the dependant children of a defendant. Section 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(n) the probable effect any sentence under consideration would have on dependants of the defendant;
This section has been described as encapsulating the common law position.[6] The common law principle was described by Wells J in R v Wirth[7] as follows:
When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?
…
Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court … It seems to me that courts would often do less than their clear duty – especially where the element of retribution, deterrenct [sic], or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. … For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.
[6] R v Carpentieri (2001) 81 SASR 164; R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60 at 70
[7] (1976) 14 SASR 291 at 295-296
As some degree of hardship will invariably be suffered by dependants of a defendant upon imprisonment, hardship to those dependants will not generally to be taken into account in a defendant’s favour except in extreme or extra-ordinary circumstances. In other words, the hardship must be of such a serious character as to call for a merciful approach to sentencing. This principle was confirmed by this court in R v Carpentieri[8] , Bates v Police[9] and Neill v Police [10].
[8] (2001) 81 SASR 164
[9] (1997) 70 SASR 66
[10] [1999] SASC 270
In Bates it was found that a magistrate erred in failing to give sufficient recognition to the effect that a term of imprisonment would have on the emotional wellbeing of an appellant’s dependant children. In that case, the appellant was the sole de-facto parent of his sister’s children. The children’s mother died in custody and the children were fearful the same would happen to the appellant if he were imprisoned. Perry J referred to his decision in Walsh & Anor v Department of Social Security where it was observed:[11]
Various international instruments which have been entered into by Australia emphasise the protection by the society and the State of the family as the natural and fundamental group unit of society, and preservation of the rights of children. Although such international instruments do not form part of Australian law, they serve to underscore the importance of provisions such as s16A(2)(p) of the Crimes Act, which, where possible, should be construed and applied consistently with them. So that while we should always bear in mind the principles which find expression in relevant international instruments, particularly those which have to do with human rights, recourse to them in this case is hardly necessary, as s16A(2)(p) of the Act is clear and unambiguous in its terms.
It appears to me that, bearing that provision in mind, either the learned sentencing magistrate failed to pay sufficient regard to the effect upon the appellants’ three young children of a custodial sentence imposed upon both parents, or, on the basis of the additional material which has been placed before me for the purposes of the appeal, recognition of the need to have regard to the dependant children should result in intervention by way of appeal in a form appropriate to ensure that the welfare of the children is adequately protected.”
[11] Walsh v Department of Social Security (1996) 67 SASR 143 at 147
In respect of the appellant in Bates, Perry J commented:[12]
[12] (1997) 70 SASR 66 at 71
Here it seems to me that the fact that the appellant had custody of the two young children of his deceased sister is a matter which, consistently with the observations made by me in Walsh, called for careful consideration by the sentencing court.
Nonetheless, if it was simply a matter of the children being looked after by a friend for a short period of seven days, I do not think that the need to give consideration to the effect of the sentence upon the children would be a factor serving to deflect the court from imposing a custodial term of imprisonment if it otherwise was appropriate to do so.
…
But there is another aspect of the effect of a custodial term upon the children in this case which should be taken into account. In Ms Lambert’s affidavit, she deposes to the following:
"11. I informed the Learned Special Magistrate that the children were aware that the appellant may be imprisoned and they were extremely distressed at this prospect. The children had expressed the view to the appellant that their mother had already died in jail and they were very fearful that the same thing would happen to the appellant if he was imprisoned.
12. I further submitted that if a term of imprisonment was to be imposed any term of imprisonment would have a very detrimental effect on both of the children in view of their past experiences. I further informed the Learned Special Magistrate that a psychological report had not been ordered in relation to the children because the appellant’s instructions were that he did not want to put the children through any more trauma. The appellant was of the view that if the children were to sit down with a psychologist for a number of hours and go over the death of their mother and talk about their feelings if their uncle went to jail, this would just cause them even more distress.”
The children are at what I would expect to be an impressionable age. It is not difficult to imagine that even a short term of incarceration of their uncle, who is in loco parentis, could have a serious effect on their emotional well being.
In my opinion, the learned sentencing magistrate erred in failing to give sufficient recognition to this aspect of the matter. In that sense, the sentencing discretion miscarried. It is incumbent upon me to exercise it afresh.
In Neill, [13] the defendant was sentenced by a magistrate to a head sentence of four years imprisonment with a non parole period of two years and six months for numerous counts of breaking and entering. The defendant lived in a de-facto relationship for some eight years and had two young daughters from that relationship. Following the imposition of this sentence, the defendant’s de-facto partner was killed in a motor vehicle accident. There was no relative in South Australia able to care for the children. When hearing the appellant against sentence, Doyle CJ observed:
The impact of the sentence on Mr Neill’s family was a matter relied on before the magistrate. The death of Ms Pavey and its effect on the children could not have been known at the time. For those reasons I can act on the further material.
…
I then have to consider whether, in light of that material, the magistrate would have imposed a lesser sentence. It is not simply a matter of me imposing a fresh sentence because there is new material. I have to be satisfied that had the magistrate known of the material he would not have imposed the sentence that he did, see R v Amuso (1987) 138 LSJS 53 at 57.
The magistrate was obliged to consider the impact on Mr Neill’s family of a sentence of imprisonment. He was required to do that by s10(n) of the Sentencing Act. In R v Adami (1989) 51 SASR 229 the court held, applying principles that the court has long applied, that the effect of a sentence on the offender’s family will be used to reduce the sentence only in exceptional cases. That has to be so. A sentence of imprisonment will usually affect the family of the offender. In the ordinary case that is not a matter that will provide a basis to reduce a sentence. But there are cases when the effect is so great that the court can rely on it to reduce the sentence that is otherwise appropriate. The court does so out of consideration of the welfare of the family, and society’s interest in their welfare, and not merely as an act of mercy to the offender. Even then the court must still give weight to the other relevant factors. The process of sentencing does not become one in which the impact on the offender’s family controls the outcome, or even is a dominating factor. The true position is that the interests of the offender’s family may be given effect to by reducing an otherwise appropriate sentence.
[13] [1999] SASC 270
In the present case, medical evidence and further affidavits have been put before this court. This material was not available to the sentencing judge. This further evidence discloses a significant hardship to be suffered by the appellant’s dependant children arising from their mother’s serious mental illness. As earlier observed, the psychological evidence put before this court reveals that the appellant’s three daughters’ emotional well being has been significantly affected by the imprisonment of their father and the hospitalisation of their mother. It has been said that these children:
require a level of consistency of parenting over and above that required by most other children … to enable them to stabilise emotionally, interact appropriately, and forge appropriate relationships with others.
The hardship identified is one that goes beyond the economic or emotional hardship to be expected when a parent is imprisoned. In such circumstances, an approach to sentencing that weighs the interests of the children with other material matters, such as the gravity of the offending, is warranted.
A Merciful Approach
Outside of the principles of mitigation and totality, sentencing authorities have an inherent discretion to grant leniency under the doctrine of mercy. In Cobiac v Liddy Windeyer J observed:[14]
The whole history of criminal justice has shewn that severity of punishment begets the need for a capacity for mercy. … This is not because mercy, in Portia’s sentence, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.
[14] (1969)119 CLR 257 at 269
In R v Miceli[15] the Victorian Court of Appeal recognised the doctrine of mercy as relevant to the exercise of sentencing discretion and upheld the observations of King CJ in R vOsenkowski where it was observed:[16]
… There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experience judges, that leniency at that particular stage of the offender’s life might lead to reform.
This statement has been approved by Winneke P and Hayne JA in R vCarter and R vClarke.[17]
[15] [1998] 4 VR 588
[16] Osenkowski (1982) 30 SASR 212 at 212-213
[17] R vCarter (1997) 91 A Crim R 222; R vClarke [1996] 2 VR 520 at 523
It has also been established that the discretion to adopt a merciful approach to sentencing should only be used in circumstances where weight should be given to factors which are ordinarily not regarded as relevant mitigating circumstances.[18] For example, the principle of mercy is often sought to relieve or compensate for hardship which resulted from the offence or would result from the sentence imposed. In order to demonstrate sufficient hardship in this context, there is a need to identify a significant burden to be borne in addition to punishment - for example a substantial economic, social or other disability. In some cases, circumstances personal to a defendant may give rise to the exercise of mercy to relieve excessive hardship.
[18] R vLowery (1992) 14 Cr App R 485
In the present case, the serious mental ill health of the appellant’s partner, and the impact this has had and will have on the care of their children can be described as sufficient hardship to warrant a merciful approach to sentencing. A custodial sentence imposes upon the appellant a significant burden having regard to his personal circumstances. For these reasons, a reduced non-parole period should be fixed.
Conclusion
This appeal should be allowed for the limited purpose of reducing the non parole period. The non parole period imposed by the District Court should be set aside and a new non parole period of 21 months fixed.