R v Penno

Case [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

  1. PERRY J. I have had the benefit of an opportunity to peruse the reasons for judgment of Gray J.

  2. 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.

  3. The relevant authorities are canvassed by Doyle CJ, with whom White J agreed, in R v C. Doyle…

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AGLC
R v Penno [2004] SASC 354
Case
[2004] SASC 354
Decision Date

CaseChat Overview and Summary

In the case of R v Penno, the appellant appealed against his sentence for possession of methylamphetamine for sale. The appellant was convicted by a jury and sentenced to six years imprisonment with a non-parole period of three years. The primary grounds for appeal were that the sentence imposed was manifestly excessive and should have been suspended. The appellant sought to present additional evidence not available at trial, which detailed the effect of the sentence on his dependent children, including the deterioration of his partner's health and her inability to care for the children. The court was tasked with considering whether the additional evidence could be admitted and whether the impact of the custodial sentence on the dependents warranted a merciful approach to sentencing.

The legal issues before the court were the admissibility of fresh evidence that was not available at the time of the original sentencing and the consideration of the impact of the custodial sentence on the appellant's dependent children. The court had to weigh the statutory powers to admit fresh evidence on appeal against the established principles that such powers should be exercised with caution. Additionally, the court had to determine if the significant hardship suffered by the appellant's children due to their mother's serious mental illness warranted a merciful approach to sentencing, potentially justifying a reduced non-parole period.

The court found that the serious mental health issues of the appellant’s partner and the impact on the care of their children constituted sufficient hardship to warrant a merciful approach to sentencing. The custodial sentence imposed a significant burden on the appellant, given his personal circumstances. The Crown counsel did not oppose the admission of the affidavit and medical evidence concerning the appellant's partner's mental illness and its effect on the children. The court concluded that the evidence demonstrated significant hardship to the appellant's children, which warranted a reduced non-parole period. Consequently, the appeal was allowed for the limited purpose of fixing a new non-parole period.

In conclusion, the appeal was allowed, and the non-parole period was set aside and reduced to 21 months. The court exercised its discretion under section 353(4) of the Criminal Law Consolidation Act 1935 (SA) to quash the original sentence and impose a new non-parole period, considering the fresh evidence presented and the significant hardship it revealed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J
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.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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